Fundamentals of Appellate Advocacy for Moot Court Participants — Part I: From Drafting Briefs to Courtroom Performance

Every year around this time, I hear from law students involved in moot court competitions seeking guidance. Some want help improving their briefs; others seek advice on oral argument. Last year, I was even invited to give a presentation on oral advocacy for an arbitration moot—an experience I found unexpectedly enjoyable. It took me back more than four decades, to my own days participating in an international moot court competition, long before the internet, Google, YouTube, or any of the digital resources students rely on today.

That sense of distance was enlightening. It reminded me of the challenges my partner and I faced throughout the competition, including in the final round—where we placed second overall after winning first prize for our written submission. It also led me to reflect on what has changed and what has not. Over the years, I have had the privilege of teaching law students and training practicing lawyers in trial and appellate advocacy. What experience has shown me is this: while the fundamentals of advocacy remain constant, effective persuasion requires attentiveness to the times and, above all, to the audience—the decision-makers themselves.

That last point bears emphasis. Advocacy does not exist in the abstract. It is always addressed to someone, and that “someone” has institutional responsibilities, professional habits, and cognitive constraints. Understanding those constraints—how judges read, think, deliberate, and decide—is not a stylistic preference. It is the foundation of effective appellate advocacy. That is why, whether I am offering advice in a formal presentation or an informal conversation, I always return to the core principles I have come to value through years of practice, observation, and reflection.

These principles have been developed through observing top advocates in action, receiving candid and often generous feedback from judges on how to enhance my preparation and delivery, reflecting on both failures and successes since much can be learned from failures, and collaborating with colleagues and friends with whom I have spent years contemplating persuasion.

In particular, I have spent countless hours discussing trial advocacy, testing case theories, and analyzing how to persuade judges with two outstanding advocates—Suzana Tomanovic and Alan Yatvin. For more than two decades, Suzana Tomanovic and I have tried cases together at various international criminal tribunals, while Alan Yatvin and I have co-taught for twenty-five years at the Cardozo Law School Intensive Trial Advocacy Program.

Over time, I have learned that effective advocacy is not about impressive writing or flashy performance for their own sake. It is disciplined persuasion—focused on substance and communicated with clarity, humility, and control. Whether in moot court or before an actual bench, written and oral advocacy is not about creative writing, delivering a perfect script, or improvising clever lines. It is about precision, logical analysis, careful word choice, and thorough preparation that help complex ideas be understood easily, while also building confidence, presence, and credibility.

An advocate needs to thoroughly understand the record and the law to identify key issues in dispute, respond intelligently to challenging questions, make strategic concessions when appropriate, interpret the judge’s cues, and—during oral arguments—adjust in real time to what truly influences the decision-makers.

At its core, advocacy is persuasive rhetoric designed to shape a narrative within certain boundaries to assist judges in their deliberations and decisions. These judges are perceptive, skeptical, impatient with unnecessary details, and continually pose—either directly or indirectly—three basic questions.

1. 1. 1. What happened?
      2. Why does it matter legally?
      3. Why should I rule for you rather than the other side?

What follows here and in the next post are the fundamental principles of my overall guide for moot court competitors. They are also valuable for practitioners, especially those just starting out. I offer a practical framework for drafting appellate briefs and preparing to deliver persuasive oral arguments. While becoming proficient in appellate advocacy involves more than what can fit into two modest posts, my aim is to provide a systematic starting point—one that any dedicated moot court participant or aspiring lawyer can develop, test, and refine through consistent practice.

Caveat

Two points deserve emphasis at the outset.

First, whether in a moot court competition or before a real appellate bench, strict compliance with all governing rules and directives is indispensable. This includes requirements relating to font size, page or word limits, formatting, citation practices, and—during oral argument—the proper manner of engaging with the bench. These are not technical formalities. They are conditions of participation. An advocate who disregards them compromises credibility before a single argument is made. Every instruction should therefore be read carefully, understood fully, and followed precisely.

Second, effective advocacy requires close attention to how the judges before whom you appear conduct their proceedings. Judicial styles vary widely across courts and forums. In some national jurisdictions, judges favor rapid, pointed questioning over uninterrupted presentations, expecting concise and precise answers—an approach that demands rigorous preparation and sustained mock questioning. In international criminal tribunals, advocates are often provided with written questions and strict time allocations in advance. These are not hints or preliminary signals; they are the questions the bench expects to be answered, often followed by further probing. Moot court competitions span this full range. Success in such settings depends on the advocate’s ability to remain fully present: responding directly to what is asked while recognizing—and seizing—opportunities to reinforce the issues that truly matter.

The tools discussed in this series are intended to operate within these two dimensions: disciplined adherence to rules and informed responsiveness to the bench’s mode of engagement. There is no universal script and no one-size-fits-all method of advocacy. What exists instead is a principled approach—preparation that enables flexibility, and awareness of rules and local practice that allows persuasion to function effectively. These posts offer a framework, not a formula: guidance designed to sharpen judgment, not substitute for it.

PART I

From Brief to Bench: Written Appellate Advocacy That Judges Can Use

Take writing seriously as a craft in its own right. Most legal writing is bad writing, so to encounter a superbly written brief makes the judge nearly overflow with gratitude.

— Judge Raymond M. Kethledge, U.S. Court of Appeals for the Sixth Circuit

“Adequate presentation begins with adherence to the fundamentals of good writing—precision, conciseness, simplicity, and clarity.”

— Douglas E. Abrams

In appellate advocacy, the key question is not whether your brief is clever. It is whether it is useful.

Appellate judges approach briefs differently from professors reading essays or audiences listening to speeches. Judges read as decision-makers working under constraints. They read to identify errors, apply standards of review, and articulate reasons that will withstand scrutiny. The most effective appellate advocates—whether in moot court or early practice—understand this instinctively. They draft not to perform, but to assist. They do not write for the court; they write with the court.

This post is about how to do that.

What Appellate Judges Are Really Doing When They Read Your Brief

When appellate judges read your brief, they are not asking whether it is persuasive in the abstract. They are asking:

• • • What exactly is the alleged legal error?
    • What is the applicable standard of review?
    • Is the issue preserved?
    • What does the record actually show?
    • Does the law permit intervention?
    • What rule would this case produce?
    • Can this reasoning be written clearly, narrowly, and defensibly?

Judges begin their mental preparation well before deliberation. Your brief either guides this process or prompts them to consider different options. Therefore, successful advocates view briefs not just as compelling, issue-driven stories but as strategic tools to shape judgments.

The Appellate Advocate’s Mindset: From Storytelling to Decision-Building

Trial advocacy often relies on storytelling. Appellate advocacy depends on structure. During an appeal, you’re not reconstructing events; you’re identifying legal errors and explaining—based on the standard of review—why correction may or may not be necessary or permitted. For moot court competitors, this requires a shift in mindset.

On appeal:

• • • You are not telling a story.
    • You are building a judgment pathway.

That pathway must be:

• • • Legally disciplined
    • Procedurally precise
    • Honest about weaknesses
    • Narrow enough to decide

A simple test applies throughout drafting: Could a judge lift this paragraph, with minimal modification, into a judgment? If not, it likely needs revision.

Issue Framing: Narrow, Precise, and Decisional

How you frame the issues on appeal often determines the outcome. Issues should be:

• • • Narrow
    • Carefully worded
    • Legally consequential

Avoid framing issues as abstract debates or policy questions. An appellate issue should capture exactly what is legally in dispute and no more.

Overbroad issues lead to judicial hesitation. Narrow issues lead to decision. A well-framed issue does three things at once:

1. 1. 1. Identifies the alleged error
      2. Signals the standard of review
      3. Suggests the appropriate resolution

The Record (and the Fact Pattern): Read It Until You Truly Understand It

Appellate advocacy lives and dies on accuracy.

In real appeals, this means mastering the record. In moot court, it means mastering the moot court problem. The principle is the same. Read it carefully. Then read it again. Then read it again. The first reading is never the real one. Understanding comes after repetition. Read until you can explain the facts without embellishment, omission, or confusion. Read until you understand not only what the trial court said, but why it said it.

Every factual assertion must answer three questions:

• • • Where is this supported?
    • Why does it matter legally?
    • Is it disputed?

Findings, Holdings, and Dicta: Precision Matters

Always accurately represent the lower court’s findings, holdings, and reasoning. Avoid attributing explanations the court didn’t endorse, as credibility is fragile and easily lost. Young advocates often confuse these concepts. Judges never do.

• • • Findings are determinations of fact.
    • Holdings are legal conclusions necessary to the decision.
    • Dicta (obiter dictum) are statements not essential to the outcome.

Do not cite findings as holdings. Do not cite dicta as binding authority. Dicta can be useful, but it must be identified honestly and explained persuasively. Precision in these distinctions signals seriousness and competence.

The Law: Rules First, Not Case Dumps

Appellate judges apply law. They do not admire it. A strong law section follows a deliberate sequence:

1. 1. 1. Extract the governing rule
      2. Explain its function
      3. Apply it to the facts
      4. Explain the consequence

Avoid long strings of citations and excessive quotations. Begin with the strongest authority: statutes, treaties, binding precedent. Academic commentary should come last. Judicial writing applies the law. Your brief should follow the same order.

Orwell’s Discipline: Writing That Respects the Reader

George Orwell’s Politics and the English Language remains essential reading for advocates.

Before each sentence, ask:

• • • What am I trying to say?
    • Have I said it plainly?
    • Can I say it more shortly?
    • Have I said anything avoidably ugly or misleading?

Follow his rules:

• • • Never use a long word where a short one will do.
    • If it is possible to cut a word out, cut it.
    • Use the active voice.
    • Avoid clichés and jargon.

Clarity Is Not About Style. It Is About Persuasion.

Clarity in legal writing is often misunderstood as a stylistic preference. It is not. It is a matter of persuasion.

Judges do not read briefs to admire how they are written. They read them to decide cases. Every moment a judge spends struggling to understand a sentence is a moment not spent evaluating your argument. A thought that requires rereading has already lost ground. A paragraph that obscures its point asks the judge to do work the advocate should have done.

Elegance and eloquence in appellate writing do not come from ornament. They come from discipline.

They are reflected in simple sentence structures, plain words, and short, direct sentences that express one idea at a time. They are reflected in restraint—where every word earns its place because it helps the judge understand what is being said and why it matters legally.

This does not mean writing that is dry or mechanical. It means writing that respects the reader. Writing that anticipates how judges actually read: quickly at first, skeptically throughout, and always with an eye toward extracting usable reasoning.

Appellate judges are not supposed to be impressed by your style. They are supposed to understand your analysis. If your language draws attention to itself, it is probably getting in the way. If your prose feels invisible—if the ideas seem to move effortlessly from premise to conclusion—you are doing it right.

Short sentences help. Plain words help. One thought per sentence helps. So does the willingness to cut anything that does not advance the analysis. Good appellate writing does not show off intelligence. It makes intelligence useful. And in appellate advocacy, usefulness is persuasion.

Rewriting Comes Before Proofing — and It Must Be Finished

Final proofing is not the time to rethink arguments, restructure sections, or try different language options. By the time a brief reaches the proofing stage, it should already be thoroughly complete, well-organized, and stylistically finalized. That level of quality is achieved through rewriting.

Good appellate briefs are not written just once. They are revised—often multiple times. This is not inefficiency; it is the process. Rewriting is where advocacy truly takes form. It is where vague ideas are tested, refined, and either strengthened or discarded. It is where structure replaces instinct, and discipline replaces enthusiasm. Proofreading can fix errors, but it cannot rectify unclear thinking.

For moot court teams especially, rewriting fulfills several key roles—each directly related to how judges read, comprehend, and decide cases.

First, rewriting enhances clarity of thought. If a sentence cannot be shortened without losing its meaning, the issue is usually conceptual rather than stylistic. Rewriting reveals gaps in reasoning, hidden assumptions, and arguments that seem plausible but do not actually address the legal issue at hand. That is precisely why rewriting should happen before proofing. Proofing cannot fix unclear thinking.

Second, rewriting ensures consistency across the brief. This is essential when multiple drafters are involved. Judges should never detect shifts in voice, terminology, or analytical approach. Rewriting harmonizes the brief so it appears to be written by a single author—using consistent terms for the same concepts, uniform sentence structure, and a steady analytical rhythm throughout.

Third, rewriting involves refining the structure. Early drafts often follow the order of ideas as they come to the drafter. Final briefs must align with the order in which judges require those ideas. Rewriting is the process where arguments are rearranged, narrowed, merged, or eliminated entirely so that the brief flows smoothly toward a decision. If a point does not help resolve an issue, it does not make it through this stage.

Fourth, rewriting promotes simplicity. This involves cutting excess words, shortening sentences, removing adjectives and adverbs, and grounding abstract claims with authority and citations. Each paragraph should focus on one task, do it clearly, and then conclude.

A helpful practice is to do at least one full revision without altering any words—focusing only on structure, flow, and clarity. Read the brief straight through and ask:

• • • Does each issue unfold logically?
    • Do transitions make sense to a reader encountering the case for the first time?
    • Could a judge lift this section, with minimal adjustment, into reasons for judgment?

Only after the answer to those questions is yes should sentence-level edits begin.

Rewriting as a Precondition to Final Proofing

The Final Proofing Sign-Off Sheet serves as a gate, not a checklist to complete during rewriting. No team member should begin final proofing unless all of the following are true:

• • • No further research is required
    • No alternative formulations are under consideration
    • No structural changes are contemplated
    • All arguments are final in substance and sequence

If any of these conditions are not met, the draft is not ready for proofing. Final proofing assumes that:

• • • The law has been fully and accurately analysed
    • The record has been read, reread, and fully understood
    • All concessions have been made consciously
    • All opposing authority has been addressed deliberately

Proofing polishes the document, while rewriting persuades the reader. This difference is crucial because judges recognize it instantly. A rewritten brief seems deliberate and well-crafted, whereas one that is only proofread may seem rushed, uneven, or hastily assembled.

The Final Proofing Sign-Off Sheet should only be completed once the rewriting process is finished. It serves as an ethical and professional affirmation, not just an administrative task. When you sign it, you are effectively saying:

• • • I understand every argument in this brief
    • I stand behind every factual assertion
    • I have verified every citation
    • I would be comfortable defending this brief before the bench

If any of these statements feel premature, the rewriting is not yet finished.

In appellate advocacy, especially during moot court, rewriting is essential to transform effort into credibility. Proofreading acts as the final sign of respect for both the court and your work.

Proofing Is Advocacy, Not Administration

Final proofing is not merely a clerical task at the end of drafting; it is a crucial act of advocacy. Judges read briefs with an eye shaped by experience and quickly recognize patterns. A brief that contains typographical errors, grammatical slips, inconsistent terminology, or careless citations sends an immediate signal—not just about the document but also about the advocate behind it. Judges reasonably infer that carelessness in form may indicate carelessness in analysis.

Proofing isn’t merely cosmetic; it plays a crucial role in establishing credibility. Final proofing requires slowing down and reading the brief from the perspective of the ultimate reader, not its author. Imagine yourself as a judge encountering the case for the first time, seeking clarity, accuracy, and reliability. At this stage, every detail matters because each one either fosters or undermines trust.

Before submission, every brief should be reviewed with deliberate care to ensure that:

• • • Every citation accurately supports the proposition for which it is cited
    • All quotations are exact, properly attributed, and correctly formatted
    • Formatting requirements have been followed precisely and consistently
    • Record citations are complete, accurate, and easy to locate

A clean brief does not guarantee success. But a sloppy one almost guarantees distrust. Proofing is the final demonstration of respect—for the court, for the process, and for the work itself.

Why This Matters—Especially for Moot Court

In moot court, judges sometimes assume roles, but in actual appellate courts, they do not. This difference is more important than many students initially realize. Moot court serves as a training ground and also as a rehearsal for professional advocacy. The habits you develop here—such as how carefully you read, how precisely you write, and how honestly you recognize weaknesses—will carry over into your practice.

Training yourself early to draft like appellate judges think has lasting effects. It sharpens your writing because it requires discipline. It improves your oral advocacy because it grounds your answers in a clear structure. It increases your credibility under questioning because judges sense when an advocate has mastered the material rather than memorized lines.

Most importantly, it shifts your mindset. You stop performing and start assisting.

The top appellate advocates are not flashy. They are effective. They understand that persuasion at the appellate level is quiet, restrained, and deeply analytical. They write briefs that assist judges in deciding cases, not briefs that seek to impress judges. This is what judges remember.

Optional Final Suggestions for Moot Court Teams

To make this process fully functional rather than just aspirational, consider implementing the following practices:

First, require each team member to be able to explain any argument in the brief without notes. If someone cannot clearly explain a section, the brief is still incomplete.

Second, perform a “judge’s read” before the final proof. One team member reads the brief aloud while another follows silently, marking anything that sounds awkward, confusing, or too dense. What sounds unclear when spoken will also seem unclear on the page.

Third, treat the Final Proofing Sign-Off Sheet as a professional commitment rather than just an administrative step. Signing it should mean that you are confident you can stand before the bench and defend every word in the document.

These habits not only improve briefs but also turn students into advocates.

A Final Word

A well-rewritten and carefully proofed brief does more than meet formal requirements. It prepares the advocate effectively. When arguments are deliberately structured, expressed clearly and simply, and firmly grounded in authority and fact, transitioning to oral argument feels natural. The advocate knows where each answer is in the brief. The logic is familiar. The concessions are intentionally made. The weaknesses have already been addressed and handled.

Oral advocacy doesn’t start at the podium. It begins during the rewriting process. A brief that has been carefully rewritten and carefully proofed not only speaks to the court but also represents the advocate—quietly, confidently, and persuasively—long before the first question is asked. This is the true reward of well-executed written appellate advocacy.

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Checklist

Orientation
☐ Issue stated in one sentence
☐ Standard of review explicit

Record
☐ All facts cited
☐ No unnecessary narrative

Law
☐ Rules extracted, not just quoted
☐ Strongest authority first

Argument
☐ Few, ranked issues
☐ Opposing authority addressed

Ethics & Style
☐ Accurate and precise
☐ Orwell’s rules observed

Relief
☐ Realistic and coherent

Final Proofing
☐ All citations verified
☐ Would I sign this as filed?

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Next

In Part II — Disciplined Persuasion: Preparing for Moot Court Oral Advocacy, I shift from the page to the podium. There, I explore how the same principles that govern effective written advocacy—clarity, structure, candor, and discipline—translate into persuasive oral argument. While moot court advocates are not limited to their briefs and can expand upon them in response to questions, the strongest oral performances are always grounded in careful written preparation. A well-crafted brief does not restrict oral advocacy; it empowers it. It provides the advocate with confidence, flexibility, and control as the bench begins to question what truly matters. Part II discusses how to prepare for that moment—how to anticipate questions, how to answer them directly, and how to stay persuasive under pressure—so that when the court begins its inquiry, you are not reacting, but engaging.

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