Procedural Posture - The Underexplore Continent of Moot Court
by
Sanford N. Greenberg

Procedural posture is the underexplored continent of many appellate advocacy competitions. Getting competitors to explore this continent in more than a superficial manner isn't easy, but it's a goal worth pursuing.

Each year, I read numerous interscholastic competition briefs, judge oral argument practices, and accompany some teams to the competitions. Topics vary from constitutional law to intellectual property. Our teams, and their opponents, often display a sophisticated understanding of challenging substantive issues. And their oral advocacy skills greatly impress the real-world attorneys and judges who serve as competition judges.

What the competitors generally fail to understand, however, is the significance of what happened procedurally in the court(s) below. For example, was the case decided on a motion to dismiss, on a motion for summary judgment, or after a trial on the merits? Procedural posture plays a role in determining what test the trial court is supposed to apply in reaching its decision. It can determine the standard of review that the appellate court should apply. It also can affect what will happen if the appellate court reverses and remands for further proceedings in the trial court. Yet, when moot court judges pose questions on such procedural issues, especially early in the oral argument preparation process, the competitors may be stumped.

The difficulties often begin with the problems themselves. Those who draft moot court problems at times appear to have little interest in or understanding of procedural posture. My favorite example is a problem in which the court granted summary judgment after a trial.

Even if the problem doesn't contain such gaffes, competitors tend to focus on the problem's difficult substantive issues rather than think about procedural context. They may throw in a brief reference to standard of review. But they rarely show the same sophistication on procedural issues that they demonstrate on the substantive topics.

In a sense, it's easy to understand why moot court competitors don't adequately explore the procedural posture continent. Why should they worry whether a party would have sought to dismiss for failure to state a claim or sought summary judgment? Why should they check whether a notice of appeal was timely filed? Why should they care whether the appellate court is supposed to remand or just reverse if the trial court erred? After all, no matter how well an appellant's counsel may argue, the imaginary client isn't going to get another bite at the apple in the court below. No matter how much the competitions try to simulate some aspects of the real world, everyone knows that this is, after all, moot court.

Getting competitors to take procedure seriously requires getting them to make believe that the appeal involves real clients. Many moot court faculty advisors already advise their teams to think of the clients as real to motivate the competitors to argue more persuasively. But that's only one reason to pretend that the clients really exist. Advisors should encourage the competitors to pretend that these clients actually participated in the court below in a real case, with a real procedural history. Urge the competitors to imagine that the outcome of the appeal will affect real clients. Above all, remind them that courts affect real parties not only by pronouncing abstract legal principles but also by applying those principles in the parties' own case.

By imagining that they represent real clients, moot court competitors should improve their performance in several ways. They are more likely to think about, research, and understand the type of procedural issues that this essay addresses. They can then frame arguments that are more procedurally realistic. In some cases, they can argue that their client should "win" the appeal without setting an unnecessarily high hurdle to surmount. For example, if reversal is appropriate where a genuine issue of material fact can be established, a competitor representing the appellant shouldn't try to convince the court that the client must win the case on remand: "Your honors, all that Mr. Jones is asking this Court to do is give him a chance to prove his case in the trial court." And moot court appellees sometimes can take advantage of deferential standards of review in framing their arguments.

There is no guarantee, of course, that pretending moot court cases do involve real clients will produce these benefits. But if this approach does lead competitors to take procedural posture seriously, it should at least provide a valuable general lesson that may remain with the competitors long after they've forgotten the competition's substantive details. Once adequately explored, the procedural posture continent isn't easily forgotten.