Virginia Lawyers Weekly

Moot court sessions are an invaluable tool in preparing an appellate argument, Virginia’s solicitor general and his predecessor told a group of appellate specialists last month.

The sessions help an attorney anticipate any possible questions, come up with the right answers and present them in a way that advances the argument, said William E. Thro, who last week became university counsel to Christopher Newport University after four years as solicitor general. His comments came at the 2008 Virginia Appellate Summit, held Aug. 28 in Richmond.

Thro’s successor, Stephen R. McCullough, said the sessions tease out the weaknesses in a case and can demonstrate that your arguments are not as good as you think they are. The practice arguments also build confidence and help distill the argument, he said.

And they provide an opportunity to hone the first minute or two of the argument, all the time an advocate is likely to have to present his case before being peppered with questions, he added.

Thro said moot courts can be especially helpful in developing an artful way to move from questioning that is not helpful to your case to an area that is more favorable. The most important technique, though, is to answer the question as directly as possible before shifting the focus of the argument, he said.

McCullough and Thro were joined by Richmond attorney Wyatt B. Durrette Jr., who suggested ways set up a moot court: someone outside the law firm, preferably a retired appellate judge, who will agree to read your brief and listen to your argument; lawyers within the firm; or an expert in the area of the law in question who is willing to do you a favor. Someone who is reading the brief and hearing the argument relatively cold often provides the best feedback, Durrette said.

All three said three sessions within a couple of weeks of the argument are ideal and suggested perhaps the most difficult procedure of all for a busy lawyer, taking a day or two before the argument, as McCullough put it, “to rest your mind and focus.”
Supreme Court Justice Lawrence L. Koontz Jr. and Court of Appeals Judge Robert P. Frank both appeared at the program, and they emphasized keeping the arguments as simple as possible. “Even complex issues don’t need to be handled in a complex fashion,” Frank said.

He also encouraged lawyers to eliminate extraneous material and cited as an example an appendix to a workers’ compensation appeal that included medical re-cords when the only issue was the number of employees the employer had.

Frank said attorneys should argue the ends of justice if they face the possibility of a procedural default. “We’re not going to raise it on our own,” he said.

He discouraged the use of statements in lieu of a transcript. “It you’re the appellant relying on it, notify your malpractice insurer in advance,” he said.

Koontz said an oral argument changes his mind in as many as 20 percent of cases, and he disputed the idea that more cases are lost at oral argument than are won. “A poor oral argument doesn’t help, but it doesn’t make you lose,” he said.

Both judges said there’s no place during oral argument for harsh criticism of opposing counsel. In fact, Frank said, any attorney who uses the word “disingenuous” ought to lose the appeal.

The group also heard from Mark Zanchelli, chief deputy clerk of the 4th U.S. Circuit Court of Appeals, who reminded summit attendees that electronic filing has been mandatory in the court since June 1. Attorneys must get in-person or online training before they can file papers, and Zanchelli acknowledged, “We have had quite a few frantic phone calls from counsel.”

The numbers suggest that many attorneys are getting the training on a need-to-know basis. Only about 3,700 of the 48,000 attorneys admitted to practice in the circuit have completed the training, he said.

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