Social Education 66(1), pp.42-45
©2002 National Council for the Social Studies
In the last twenty-five years, mock trials have become a staple of instruction in law, government, and civics classes. Mock trials are an exciting way to teach trial court procedures and to develop a wide range of skills. They also provide a positive opportunity for students to interact with a person from the justice system. In addition, mock trials help students develop a context for understanding television trials, which they learn may have more to do with entertainment than with what happens in an actual courtroom. Participation in mock trials also teaches students about the importance of serving on juries, a fundamental obligation of American citizenship. As evidence of their popularity, mock trial tournaments in most states lead up to a national tournament, which is held in a different state each year.1
What many students in mock trial programs do not learn is that other important and engaging legal proceedings begin after the trial ends. These proceedings are called appellate hearings; when simulated, they are called moot courts. Many moot court activities are simulations of oral arguments before the U.S. Supreme Court. In moot courts, as in appellate hearings, the participants accept the facts that were developed at the trial. The focus of the appellate hearing is on the legal or constitutional issues arising out of the trial decision. For example, at a criminal trial, the finder of fact will determine whether the defendant is guilty of the crime charged. But in an appeal of that trial, the focus is on a legal or constitutional question. For example, was the evidence used at the trial seized in violation of the defendants Fourth Amendment rights? When a trial court renders a verdict, it makes an impact on all the parties involved. When an appellate court issues a legal opinion, it requires other lower courts in the state (state Supreme Court opinions), in a region (the U.S. Circuit Courts of Appeal), or in the entire country (the U.S. Supreme Court opinions) to follow that opinion.
Whereas mock trials require student mastery of trial court procedures and rules of evidence (which can be complex even when simplified), the procedure for a moot court is simple and straightforward, giving students time to learn about legal and constitutional issues.
Benefits for Students
By participating in moot courts, students wrestle with persistent public policy questions and come to better understand the role that the judicial branch plays in our democratic system. Abstract principles, such as the right to privacy, become real when students argue whether the police, in searching someones trash for evidence of illegal drugs, have violated reasonable search conditions under the Fourth Amendment.
Students playing the role of attorneys in moot courts learn to think on their feet while formulating and articulating persuasive arguments based on legal precedents and constitutional concepts. Students playing the role of judges (or justices) prepare and ask penetrating questions in pursuit of reasoned responses from counsel to arrive at a decision. Student justices must also consider the impact that their decisions will have on public policy and on the public at large. Participating in moot courts, students gain a deeper understanding of legal and constitutional issues, acquire important standards-based social studies knowledge, practice critical analysis, and examine historical and current issues in ways that foster civic literacy.
Resources from the justice system can help students prepare for the moot court activity. Lawyers, judges, and law students bring specialized knowledge of law and appellate procedure to the class and enjoy the opportunity to work with young people. A reporter who covers the courts could also visit the class to work with those students who take on the role of journalist. In addition to assisting students with the preparation of the moot court, it is helpful to have these guests observe the activity, offer feedback, and answer questions.
Most teachers who use moot courts in their classrooms focus on simulating oral arguments before the U.S. Supreme Court with some sense of authenticity. For example, nine students can play the roles of justices, perhaps wearing judicia#148; robes (borrowed from the school choir). From a larger counsel group, two students might be selected as counsel for the petitioner and counsel for the respondent, with one student providing the argument in chief for each side and the other student making the rebuttal. With a student timekeeper and a few journalists, this arrangement can involve all students.
Some teachers have decided to trade authenticity for greater student participation and hold multiple moot courts. In this case, each moot court has either three or five judges, along with four student attorneys. Justices prepare in groups, and counsel for each side also prepare in groups. But once the hearings begin, all students participate directly. An appellate pane#148; of five judges with two lawyers on each side will involve nine students for each moot court. With some timekeepers and journalists, designing multiple moot courts that involve everyone is relatively easy. And when the various panels hand down their opinionswhich may vary from panel to pane#150;students learn a lesson that all lawyers who argue in the federal courts of appeals know: The judges on your panel matter!
Some teachers make another alteration in their classroom moot court programs: They trade authenticity for civility. Anyone who has seen an oral argument at the U.S. Supreme Court knows that the lawyers seldom get more than 90 seconds into their argument before the justices begin firing questions. Sometimes counsel is unable to answer one question before the next one comes. In fact, much of the time spent at a U.S. Supreme Court oral argument consists of the Court having a conversation with itself, with counsel serving as an intermediary.2 While the Court has its reasons for operating this way, an authentic simulation of this conversation might not lead to an optimal educational experience. Some teachers require their justices to wait until counsel has presented his or her argument, whereas others require that the justices wait at least a few minutes before attacking.
Because the moot court strategy is relatively new for social studies teachers, there is a paucity of commercially prepared materials. Teachers who have attended a state Supreme Court institute or the U.S. Supreme Court institute receive useful moot court materials, along with the knowledge and skills required to create additional materials.
Good sources for case materials include landmark cases, as well as recently decided cases. Whether student attorneys argue historical or current cases in moot courts, they quickly realize how important a careful rendering of facts and details are when a peer asks a pointed question in the proceedings. Although the basic steps of the moot court are simple, solid preparation is crucial. Yet students do not need elaborate rules about procedures or evidence to be successful. They do need a summary of the lower court decision, along with brief summaries of several precedents supporting each side.
A lawyer or law student who works with the class can create these materials, and teachers can check them for readability. Depending on where teachers live, they might also want to take the class to see a state or federal appellate court in action. In a few areas, state Supreme Courts occasionally schedule oral arguments in high schools to give the public greater access to the courts. The states law-related education center may also direct teachers to available materials and staff development opportunities, as well as to resource people who can come into the class to help students with this activity.3
1. For more information, go to www.nationalmocktrial.org.
2. Taped oral arguments are available in CD-ROM format in Peter Ironss May It Please the Court and Jerry Goldmans The Supreme Courts Greatest Hits, both available from Internet bookstores. Nearly 700 oral arguments are also online at Northwestern Law Schoo#146;s Oyez Project (www.oyez.nwu.edu).
3. For information on your states law-related education center, go to www.abanet.org/ publiced/lre/lrestate.html
Kathy Bell is the department chair of social studies, Mundelein High School, Mundelein, Illinois.
Moot Court Activity
Make sure all students know what happened in the case for which you are planning a moot court activity. Who were the parties? How did the lower courts rule? Which party is bringing the appeal? What area of law is involved? What principles and precedents exist for analyzing these sorts of legal problems? What specific legal issue is presented in this case?
One case that would be very suitable for a moot court activity is Good News Club v. Milford Central School described in the next article by Lee Arbetman, which has a student handout on page 48.
Develop and announce clear ground rules for the moot court. Each side should have the same amount of time for its initial argument (3 to 5 minutes) and the same amount of time for its rebuttal. Decide whether justices can interrupt with questions immediately or only after the first minute.
Invite legal resource people to help you with this lesson. A judge and two lawyers or law students would be ideal. Be sure that they have an opportunity to review the material that you give to your students, as well as the actual decision by the Court, before they come to your class.
After the whole-class discussion to introduce the case (and the guests), divide the class into three groups. One group will train to be justices (try to have seven or nine students in this group), and the other groups will form legal teams that prepare the oral arguments for each side. If there are students left over, they can serve as sketch artists or reporters who prepare a broadcast that can be delivered after the oral argument or after the court announces its decision. A timekeeper must also hold up the following signs: 60 seconds to go, 30 seconds to go, STOP.
The groups work with the expert resource persons, and the teacher circulates to keep everyone on task and to remind the experts to let the students do the work! Justices should prepare questions to ask lawyers for each side. The group should select a chief justice who will preside. Each legal team should prepare its side and be familiar with the precedents involved. Part of the preparation is the anticipation of the questions from the justices. Near the end of the preparation period, select two lead lawyers from each team. One will make the initial argument and the other will handle the rebuttal.
Come back together (or, even better, find an appellate courtroom) for your moot court. Justices enter and take their seats. The chief justice calls the court to order, announces the case, and asks the petitioner (the side bringing the appeal) to begin.
The lawyer for the petitioner presents that sides (timed) argument, with justices asking questions (time runs during the questioning).
The lawyer for the respondent (the side that won in the lower court) presents its argument.
The petitioner has a brief rebuttal.
The respondent has a brief rebuttal.
The chief justice says, The case is submitted. Some teachers have the justices go into another room to deliberate. Most prefer to have the deliberation in public (definitely not an authentic aspect of the simulation). The chief asks each justice how he or she would rule and why and takes a vote. The chief then announces the decision of the court.
After the moot court, the teacher and resource persons will want to discuss with the class some issues: Did the process seem fair? Which arguments were most convincing? Which questions from the justices were most challenging? How did the court rule in the actual case? Be sure to congratulate all student participants and thank all the resource people.
Tammy Nguyen is an intern at Street Law, Inc.