File Under M: The Difference Between Mock and Moot

I have participated in mock trial since I was 12 years old. Mock trial, or “fake court,” is actually what first piqued my interest in becoming a lawyer. For those not in the know, a mock trial competition consists of two opposing teams, one representing the plaintiff or prosecution and the other the defense, simulating either a civil or criminal trial. Competitors perform opening and closing statements, conduct direct and cross-examinations, and even play witnesses. Judges score each of these components, and the team with the highest score on a particular score sheet, or “ballot,” wins that ballot. The team who wins the most ballots over the course of a tournament wins that tournament.

Throughout my competitive mock trial run, especially in undergrad, people would sometimes ask if mock trial was the same as “moot court.” Personally, I had no idea. My own rough (and erroneous) understanding of moot court was that it was the name mock trial went by at the law school level. Imagine my confusion when I joined NYU Law’s mock trial team, only to learn that some of my new teammates were also members of something called “Moot Court Board.” This mock/moot confusion seems to be widespread. I hope that the story of my own confusion can help aspiring law students, 1Ls, and any other interested parties to sort out the difference.

Mock Trial Explained

Mock trial
Mock trial: Attorneys engage in an objection battle. (Photo by Penn State Law.)

Mock trial, as I mentioned before, is competitive trial advocacy. Competitors simulate a full trial on the merits before the lowest court in the imaginary state or district in which the case’s facts take place. Law school teams consist of four competitors (undergrad teams range from six to 10). During a given round of competition (the trial), two competitors act as attorneys, and the other two act as witnesses. While witnesses are unscored, they are still incredibly important in assisting their attorney teammates by building rapport with their directing attorney and being polite but unhelpful to the opposing team’s crossing attorney. Generally, competitors play a witness on one side and an attorney on the other.

Mock trial attorneys conduct direct examinations, or expository “conversations,” with their own witnesses and cross-examinations, or an attorney-dominated series of closed-ended questions, of the opposing team’s witnesses. During these examinations, competitors from either side can make and field objections, for which law school competitions use the Federal Rules of Evidence. An objection will often prompt an “objection battle” in which the judge hears argument from each competitor, sometimes multiple times, as to how the judge should rule on the objection. Attorneys also give opening statements and closing arguments, or summations. These are uninterrupted speeches directed at the jury.

This jury component is one of the defining features of mock trial oral advocacy. Everything competitors do is for the benefit of the “jury” of scorers. Attorneys “dumb down” language into layman’s terms, use visual aids, and hammer on catchy “themes” for their case. Trial advocacy is often far showier than the appellate advocacy of moot court. Opening and closing statements can often be downright dramatic. While conversationalism and avoidance of legal jargon are also important in moot court, their effects are more exaggerated in mock trial in order to increase accessibility for the jury.

NYU Law has a successful mock trial program. Last year, the program performed very well, winning one tournament and reaching the semifinals of two others. NYU Law Mock Trial just concluded its annual Fall Oral Advocacy Competition, which acts as both an oral advocacy competition for all law students interested in brushing up on their oral advocacy skills and as an audition for students interested in competing on the mock trial team. To compete in the OAC, students prepare and deliver a 10-minute closing argument based on a short fact pattern. The mock trial board selects two winners and two runners-up, one of each for both the plaintiff and the defense. Additionally, top-scoring competitors are invited back for a callback audition, after which several are invited to join the mock trial team.

The Ins and Outs of Moot Court

Moot court
Moot court: Oral argument. (Photo by Ken Colwell.)

Moot court is a very different beast, especially at NYU Law. At NYU, Moot Court Board, or MCB, is a journal. MCB is split into two committees: Competitions and Casebook. The Competitions committee is what normally comes to mind when people think of moot court; teams of MCB members participate at various moot court competitions throughout the country. Casebook is very different. Casebook is a committee of MCB members who author myriad moot court problems, which they then assemble into a casebook. That casebook is published each year and happens to be the most-used set of casebook problems in the country.

Each year, MCB hosts the Orion S. Marden Competition right here at NYU Law. Marden is a moot court competition that spans the full year. Fall constitutes the elimination round, in which competitors brief a single-issue problem and give oral argument both “on brief” and “off brief” – on the side they briefed and on the opposite side, respectively. Competitors receive scores for their briefs and oral arguments, and those with the highest scores advance to the spring round, which will require students to pair off into teams in order to address a new, two-issue problem. This problem is framed as an appeal to the Supreme Court of the United States, with the problem materials composed of the briefs below, as well as the opinions of the lower courts who have thus far “decided” the case. Marden, as with any moot court problem, is based on a circuit split, or a disagreement between circuit courts as to how to decide a particular issue. As such, there is no “winning” precedent. Competitors must rely on their advocacy skills and their ability to distinguish unfavorable circuit precedents from those precedents favoring their positions.

In addition to running Marden, some MCB members also participate in Marden. Any MCB 2L who wishes to join Competitions in the spring must compete in Marden, with the top scorers being invited to join Competitions. However, MCB members can neither place nor advance in the fall round. The highest-scoring MCB member will be recognized; however, no MCB member can win the fall round of Marden.

As a 2L hoping to join Competitions in the spring, I have just finished competing in, and am still helping to run, Marden. The competition began back in late September, when all competitors received the fall problem. Each competitor had to write a legal brief for their assigned side, which was due several weeks before oral arguments began. Next, competitors had to prepare an oral argument for both the side they briefed and the side that they did not. Each competitor was assigned to at least two on-brief and one off-brief argument.

Compare and Contrast

Marden is very different from any mock trial competition. First, mock trial does not involve briefs. There is no written component. Secondly, and significantly, moot court involves a very different sort of oral advocacy than does mock trial. Whereas mock trial involves a whole trial, moot court tournaments are composed of a single oral argument for each side, plus a rebuttal for the petitioner. For Marden, oral arguments lasted for a maximum of 15 minutes on each side.

The biggest difference between moot court and mock trial is the difference between appellate and trial advocacy. Unlike in mock trial, in moot court one directs oral argument at a panel of appellate “judges,” usually local attorneys and judges. This type of advocacy requires a different structure, demeanor, and rhetorical style than trial advocacy. Issues do not need to be “dumbed down” or spelled out to the same degree as they would before a jury. Conversationalism is still crucial to a successful argument, but a conversation with a panel of appellate judges is obviously going to sound very different from a conversation with a jury.

Competitors’ demeanor generally differs between mock trial and moot court. During a mock trial statement, competitors will often vary their speed, tone, and volume, in addition to adding other dramatic flourishes, to keep the attention and play on the sympathies of the jury. Oral argument tends to be far less dramatic and far more straightforward. Additionally, while a strong “theme” running throughout a mock trial statement is practically a necessity, such themes are generally not used in oral arguments. If something resembling a theme is used, it will be incredibly subtle and will not be hammered home as frequently and transparently as a jury-geared theme would. Moot court oralists are concerned with framing the issue and laying out the framework of their argument before a judge can interrupt.

Judges’ interruption of oral argument is, in my opinion, the most significant difference between trial and appellate advocacy, at least in the competitive context. While no one can interrupt a mock trial opening or closing statement, judicial interruption and questioning is an essential part of oral argument. Moot court competitors prepare remarks, but they fully expect to be interrupted with questions. Judges might ask many questions or only a few, but, at least in my limited experience, judges will ask at least a question or two. The clock continues to run during questions, introducing the additional challenge of getting out each important point, or of prioritizing which points to get out, when a competitor is faced with fewer than the full 15 minutes to actually address the planned argument. Successful competitors tie their answers back into their original argument, controlling the conversation while remaining deferential to the judges. As a result, oral arguments are far more of a balancing act than the elements of a round of mock trial.

Hopefully, this post has clarified some of the confusion surrounding mock trial and moot court. As someone who intends to pursue a career in litigation after law school, I highly recommend that incoming students with a similar interest in litigation participate in one or both of these activities in order to hone their skills in that field.