Litigators

Moot Your Case Before You Walk Into Court

But be careful about becoming too enamored of your 'winning' argument.

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Beware losing yourself in your own thoughts on your argument or your case. Challenge yourself — ideally before “ignorant” others — before you walk into court.

At our firm, we simply never go into court on any even arguably substantive issue without first mooting the court or arbitration appearance. This is a lot harder to do than it sounds. You already need to set aside the time for general preparation, and to go court or deal with the call with the judge or arbitrator. Now, I’m saying to impose an obligation to meet up with colleagues (ideally who are not even assigned to your matter) before the argument. And if you’re going to do this right, you don’t do the moot the day before. My colleagues and I follow a rule where we have the moot at least two full work days before the scheduled court or arbitration appearance; ideally, I like to do it a week ahead of time. And, of course, you want to get your client to pay for three or four people or more to spend that hour or so in a conference room for a “moot of argument” as you write in the time sheet. It seems a tall order.

It is. But if you want to win for your clients, you need to do this.

First, yes, it adds a lot of staff time to what could be not the most meaningful argument in the first place. But it’s crucial time: we can do a lot of our work alone, but the best trial lawyers know that this is a team sport, and you need this opportunity to work collegially on some of the most precious time you will ever spend in a case: before a judge or arbitrators or some other case referee. Make the most of that time whenever you get it.

Second, it means adding to your case team (temporarily) since, as I wrote, in the ideal, you do not have the same people who are always on the case at that moot, at least not only them. While we can all get too much into our own heads, and too in love with our arguments, such that even speaking to other team members is useful, the ideal is to have at least one professional at the moot who is what we call the “ignorant lawyer.” This is someone who knows little of the matter and who, thus, ideally brings few prejudices to the moot, and who likely will have questions about something team members might consider obvious. In this way this ignorant lawyer (who, like your judge or arbitrator, is not spending as much time on the matter as you and the team) will challenge you on what actually is or is not so obvious. That “ignorant” colleague can provide the smartest insight into how to prepare for the time before the judge or arbitrator.

Third, the best moots are done far enough in advance of the argument or other appearance for two reasons: you want time to prepare in light of the what comes out of that moot (let’s research this; let’s prepare that exhibit; let’s speak to that witness), and you want your brain to cogitate on your ideas over time. I am convinced that there really is something to “sleeping on it,” or just letting an idea roam around in your head without focusing on it too much. You end up being more creative and simply consider things over time that you would not have if you first considered an idea only a day or two before your argument. This is why I prefer moots a week ahead of time. I find it remarkable what ideas just pop out between the moot and the court appearance, many which result in a late night email with an idea to a colleague, some quick research, or some other work to prepare for the court appearance.

Fourth, one way or the other, you need to justify to someone — your client looking at an invoice, a judge reviewing a fee application, or a supervisor who sees the people you are pulling into your matter — that you need not just your usual team, but that ignorant person, all sitting in a room, maybe for an hour or more. Clients hate those time entries and, with respect to courts, if they never followed this habit as practitioners, they may be skeptical of the time. My advice there is to figure out a way to make it happen anyway. I’m not saying don’t bill the client — this collaborative time is some of the most valuable you will provide to your clients. But maybe you need to educate your client, perhaps early on, on how your team does things. Maybe you need to accept a judge won’t give you all the time you want in the fee application. I know it can be tough, but if you want to win, you have to figure out a way to justify devoting this effort to whomever will review your time. It is enormously well worth it.

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We all think we are so smart and hard-working. And a lot of us actually might be those things. But be careful about becoming too enamored of your “winning” argument. Challenge it with your skeptical colleagues in moot arguments so you can win the argument when it really matters.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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