MOOT COURT CASE PRESENTATION GUIDE (Appellate Presentation and Brief: 15 percent of final grade)

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1 MOOT COURT CASE PRESENTATION GUIDE (Appellate Presentation and Brief: 15 percent of final grade) Each team has been given a landmark or an important case in First Amendment or media law jurisprudence. Although the case has already been decided and is part of the law of the land, we are engaging in a bit of fiction (unwise for journalism, I know) and are pretending the case has yet to be decided. Besides, cases are decided wrongly and courts change their minds when confronted with similar facts at different times in their history. You will be arguing the case based on the time period it was actually heard. But proceed like there has been no decision and as if your arguments, if adopted by the court, will make new law, or modify, distinguish or reaffirm existing law. Procedure: A. Each side has 15 minutes to argue its primary case-in-chief. Rebuttal shall be an additional 5 minutes. (20 minutes per side) 1. A designated timekeeper will insist on compliance. If you want to be warned when you only have one or two minutes left so you can begin the summation of your argument, let the timekeeper know and you will be warned. 2. Don t forget to sum up your argument and ask the court for the remedy and ruling you want. B. Order of argument: (Note: Petitioner/Respondent titles for parties are generally used before the Supreme Court when the moving party (Petitioner) has petitioned the Supreme Court for a writ of certiorari a type of discretionary appeal and not a matter of statutory right. If a matter of right, the Appellant, Appellee titles are generally used. So make doubly sure you know which side of the case you are arguing.) 1. Appellant-/Petitioner opening 2. Appellee/ Respondent-opening 3. Appellant /Petitioner rebuttal 4. Appellee/Respondent rebuttal Because of the size of the class, I may assign a few students argue cases as amici friends of the court they will get 15 minutes to argue and will file amicus curiae briefs for their roles. More to come on this C. Appellant s team will go first since it carries the burden of convincing the high court to reverse the decision of the lower court. Each student- attorney must participate in the argument, though one student-attorney may take more time in argument than his or her teammate. D. Remember you are not just briefing a case; you are advocating the righteousness of a legal position to win that case for your client. Your facts, law, reasoning and presentation must be clear and convincing to accomplish that goal. 1

2 Research Read the majority opinion in the case Read all concurring opinions Read the dissenting opinion, if there is one Read all appellate briefs filed by the lawyers if they are available Read about the time period in history that gave rise to the case to get a sense of how its historical context might have influenced the judges. Approach: So how do you approach this daunting task? Well, after you address the court by saying: May it please the court, you should continue with the following: A. Introduction: 1. Procedural History: This should include a brief description of the nature of the case and identify the parties the who sued whom. This should also include a statement of how the case got before the high court in the first place. Begin at the beginning with an indictment or a complaint. This entails a recitation of the procedural history of the case who won/lost at the trial court, who won/lost at the appeals (intermediate court level), how the case got before the current court direct appeal, writ of certiorari luckily all these things are generally set out in the written opinion; unluckily, it's baked in a good deal of legalese that you will have to sift through and make sense out of. 2. Frame The Facts: Because this is an appeal, the facts are not in dispute a given. They are often conveniently summarized at the beginning of a majority opinion but sometimes the best statement of the facts come from the dissent. Warning: Judges are not above being selective about the facts they emphasize and you should be too. Remember you are an advocate and you should emphasize the facts that support/help your side of the case and play down or counter the facts that defeat/ harm your side of the case. That doesn't mean you make stuff up; it just means you select the facts that put your case in the best possible light. B. Frame The Legal Issues 1. Again, you are the advocate here and it s up to you to frame the legal issue for the court (of course, you have to spot it first). The court may latch on to your legal issue in its opinion, but you win a big part of the battle if the court sees the issue the same way you do and adopts your language for framing it. 2. Frame the legal issue for the court in terms of a question: Is the appellant a public official for purpose of Texas libel law? It is helpful to frame the issue in a manner that requires a yes or no answer. 3. With rare exception, the outcome of a case will turn on the meaning of a provision in the Constitution, a law or judicial doctrine. So try to frame the issue by capturing the provision or debated point in your question. 4. Remember the legal issue is the question of law upon which the resolution of the case turns. 2

3 5. There may be more than one legal issue but focus on and frame the one that will control the outcome of the case. In media law cases, it is often a constitutional issue based on the First Amendment. C. Legal Reasoning Arguing The Law 1. This is where you argue the rule of law the legal test-- that you believe governs the case, which you then apply to the particular facts of the case that you have already laid out before the court. 2. The rule is the legal test or set of legal principles that you want (by way of argument) the court to apply to the relevant facts of the case to resolve the issue. You are asking the court to resolve a legal issue so you must give the court guidance on the legal rule you want the court to use to resolve the case. 3. It is your job to convince the court that a particular rule or test (say the twopart test of actual malice found in New York Times v. Sullivan) should apply to the facts. 4. In arguing the legal test that you want the court to apply, you may argue: a. That the previous opinion(s) or case(s) decided by the court (precedent) control(s) the rule of law that applies in this case. Here is where you cite prior case law and show the court why it applies in this case. Your Honors, this case is directly on point with the case of Marbury v. Madison which held that b. Although courts look to the past to decide cases in the present, case precedent may not be on your side and you may have to argue that a past case was wrongly decided or is bad law today or that society or culture has changed and the law should reflect that change. The dissenting or even concurring opinion might have the better-reasoned view now so look to these opinions for any arguments that might assist you in convincing the court that the court should overrule precedent. c. Rather than having the court overrule its own precedent, you might also argue that the facts of this particular case are not on point with the facts of the in the old case. So it s your job to distinguish or even modify the old rule from the facts of this case by saying the old rule doesn't apply to these facts because d. While most cases revolve around a legal issue, you should also consider issues of public policy, values/interests in conflict, and practical reality. No harm in looking at the bigger picture and the impact the decision might have on society. Things to consider and argue (using abortion as the issue) a. Legal: Is abortion legal? If so under what circumstances b. Public Policy: Should abortion be legal? The court both creates and enforces public policy, which 3

4 gives effect to the values of society (many of which are found in the Constitution) the public policy of this country is that parents must support there children so the law requires them to pay child support; Society believes that stricter gun laws will keep guns out of the hands of violent criminals, therefore we have background checks. c. Ethical: Balancing of interests (values in conflict) Which value is more important to society: A woman s right to privacy or an unborn child s right to life? Why? 1.1 In our cases, typically a First Amendment interest in free speech or press is balanced against a different competing interest like national security or the police power of the state. Depending on your side, you must argue that the court should give greater weight to your interest because it is more compelling or important for society. 1.2 Does the result violate your sense of fundamental fairness or justice? Your sense of right and wrong? d. Practical: What impact will the decision have on society and the courts? How will it change, alter or guide the way the lower courts make their decisions? How does this case relate to other cases in the same general area of the law? In the case of abortion: What are the options open to someone faced with an unwanted pregnancy? Where can someone go for help or advice when the legislature has restricted or closed down most of the clinics? Written Appellate Brief By 5 p.m. on the Sunday prior to argument, each side must post a 2-3 page written appellate brief in Dropbox, setting out in written form your oral arguments. The justices will have access to these briefs so they that might familiarize themselves with the arguments and frame their questions. These written appellate briefs will track much of what you present in oral argument and should include: a. An introduction setting out the procedural history of the case including an identification of the parties and what went on in the lower courts the how we got here section. b. Historical context in which the case arose (if relevant). 4

5 c. The factual scenario that gave rise to the case being filed in court in the first place. d. The legal issue or question that you are asking the court to address in your particular case: Under Texas law, can Mr. Smith be convicted of armed robbery when he displayed a toy gun while taking items from a store without paying for them? ; Does the exclusion of students from a public school solely based on race amount to a denial of equal protection under the law? e. The legal rule or test that you are asking the court to apply to the specific facts of your case? f. Your analysis and/ or reasoning: The application of the legal rule to the relevant facts of your case citing precedent, public policy, balancing of interests, impact of the decision etc. g. Closing Argument as to why you should win and the other guy should lose. The Role of the Justices (5 percent of your final grade) 1. Depending on the case, there will be 3 or 5 justices on each judicial panel whose role will be to decide the case based on the law and the arguments of counsel. Professor Donald will also serve as a non-voting justice to move the proceedings along and ask questions. 2. Justices will be responsible for reading the appellate briefs posted by counsel in Dropbox by 5 p.m. on the Sunday prior to argument. 3. Each justice will each prepare of list of five (5) questions (also placed in Dropbox) to ask the student-attorneys. 4. After the conclusion of all arguments, the justices will retire for 10 minutes and announce a ruling in the case. The majority of justices will decide the case but each justice will reveal the reasoning behind their votes. 5. By Wednesday of the week following each Monday s argument, each Justice must file a one -page written opinion, specifying how they voted and the reasoning behind the ruling, citing any precedent, argument, policy or law that was persuasive or controlling in reaching the result. Not to put to fine a point on it but your legal analysis should: 1) state the facts 2) state the issue raised by the facts 3) state the law relevant to the issue 5

6 4) decide the issue in light of the law. 6