Q: I often hear that the only choice the defense has in a case is to shoot holes in the plaintiff's story; that it has no story of its own. Is this accurate?
A: Absolutely not! There are two sides to every story. And the more sides the more stories. Let me go back to Moot Court days to remind you.
Yup, time out of mind my hair was curly and the men in robes behind me were sitting Supreme Court Chief Justices of states such as Idaho, Nevada and Pennsylvania. I had just won the final Moot Court competition arguing to this august panel.
What's "Moot Court"?
"Moot Court is a simulation of an appellate court proceeding (also known as mock Supreme Court and Supreme Court Simulation). Moot Court involves teams of student-contestants, clients burdened by a legal problem, briefs and oratory detailing the dimensions of the legal problem before an appellate court. Students argue a hypothetical legal case known as “the competition case.” To do so, students must research the cases and laws cited in “the competition case.” Moot court judges ask students questions and grade the students on the basis of their knowledge of the case, their response to questioning, their forensic skills, and their demeanor. Oral argument lasts 40 minutes (each side gets 20 minutes) and each student is expected to speak for a minimum of 7 minutes. Judges usually consist of attorneys, law faculty, or, on occasion, members of the judicial branch of government." [California State University, Fulleton]
Ironically, it's not just for law school anymore. There is an American Collegiate Moot Court Association. But I digress.
For aspiring lawyers, there is nothing better than taking part in Moot Court compettion if you want to hone your analytical, writing, narrative, and platform skills. Each of the Moot Court teams get the same set of facts from a lower court trial and decision. As I recall ours was a product liability case involving a forklift and based on the true case, Barker v. Lull Engineering Company. You research, write appellate briefs and argue your case as the appellant (applying to the higher court for a reversal of a lower cour decision) or the appellee (the respondent).
As the competition goes on teams and law students are voted out. Those left standing continue alone in the competition and have the added burden of switching sides. You must learn to leave your own story and craft a story for the other side. By the end there are only two of you. And you don't know which side you will argue until they open the envelope.
The beauty of Moot Court is that it teaches you there are two sides to each story, to each case, and all you have to do is learn which facts and which arguments support which story.
TIP: If you were on a Moot Court team in law school, go back and revisit what you did and how you did it.
TIP: If you were on Law Review or some other extracurricular activity, pay attention to the process of identifying the story you need to tell.
TIP: Identify your cast of characters remembering that even inanimate objects may count in the cast.
TIP: One at a time tell the story from the point of view of each character. I recall a case where the lawyer told the story from the point of view of a cancer that was not timely diagnosed; another where the lawyer told the story from the point of view of a dental bridge that had been fitted in an elderly man's mouth; and a third who told the story from the point of view of a street lamp that saw what really went down on that sidewalk on late summer night.
TIP: Using the same facts tell the best story you can imagine your opponent will tell; and only then tell your own. See how they compare and diverge. What makes them the same and different.
TIP: And then take the time to rent the movie, Roshomon, one of the best examples of how different points of view reveal different stories with the same set of facts.
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