University Stress Tests Lawyers Ahead of Rare En Banc Arguments

When Joaquin Gonzalez appeared before the en banc Fifth Circuit on Tuesday, he had already tested out his case before another panel, over a thousand miles away in Charlottesville, Virginia.

There, the En Banc Institute at the University of Virginia School of Law assembled a panel of lawyers and academics to ask the kinds of the questions they expected Gonzalez of the Texas Civil Rights Project to face at Fifth Circuit.

Xiao Wang, the UVA law professor who heads the institute, said that while Supreme Court practitioners might be given the chance to moot before established practitioners at Georgetown and other institutions, his project targets lawyers preparing for a rare en banc argument before a federal circuit court.

“For me, taking a look at the landscape, it seemed like mooting en banc cases was a logical next step,” said Wang, who is also the director of UVA’s Supreme Court Litigation Clinic. “I noticed no one else did it. And I also noticed that the issues that are presented in en bancs often go up to the Supreme Court eventually.”

The En Banc Institute originally began at Northwestern’s law school, but moved to UVA when Wang joined the faculty in 2023.

Moots are typical for arguing attorneys — a way to see which legal arguments might succeed or backfire, or areas of the case or law they might want to read up on before heading into the courtroom. En banc cases are even more intimidating due to the sheer number of judges who hear those cases.

No one wore robes at this moot court, which met in a hall at the UVA law school as students took finals in nearby classrooms. Gonzalez and a student standing in as opposing counsel, each wearing suits, took their place at a lectern before the five mock judges sitting at a table covered in sparkling waters and printed out briefs.

Fewer people filled the room that day than during in the US Court of Appeals for the Fifth Circuit’s packed En Banc Courtroom in New Orleans on Tuesday. Still, it was an intensive dress rehearsal, putting Gonzalez on the spot for about 40 minutes — significantly longer than the 10 minutes he got before the actual appeals court.

Each of the mooters pressed Gonzalez on definitions that could come up in the case and presented hypotheticals that tested the limits of his arguments.

With tongue-in-cheek references to each other as “judge,” members of the panel laughed about one of them fixating on a precedent that could shape the case while still asking tough legal questions that foreshadowed some of the inquiries the actual Fifth Circuit would pursue days later.

Wang, who has sat on each of the moots so far, said that while the institute can’t get as many people to fully replicate the en banc court, he’ll aim to get five to seven lawyers to sit on the moot court. He noted that typically not every judge will ask a question during arguments.

“It mimics, I think, what they’ll probably face in terms of the dynamics of 16 people. Not all 16 ask five minutes worth of questions,” Wang said.

He also said that he stays away from trying to mimic specific judges, as it’s too hard to try and figure out a judge’s mindset. But if a court is known for having a number of members with a specific judicial philosophy, like originalism, he said he’ll try to emulate that in his line of questioning.

Each of the mooters pressed Gonzalez on definitions that could come up in the case and presented hypotheticals that tested the limits of his arguments.

After the moot is done, panel members offer feedback to the arguing attorney, on what worked and which questions they might want to be better prepared to address, or to answer in a different way.

Wang said the institute currently reaches out to most of their participants, with his research assistants tracking potential en banc cases across the circuit courts.

“It takes a lot of agreement among judges, to be like ‘let’s take a case en banc,’ right? So none of the en banc cases we come to moot are boring, all of them are super interesting, usually high impact. And I think it’s a really, really important experience,” he said.

Finding ‘Pressure Points’

Rachel Brady, an attorney with the civil rights law firm Loevy & Loevy, said that Wang reached out to her ahead of arguing an Eighth Amendment case before the en banc US Court of Appeals for the Eleventh Circuit in January. She said that while she did other moots to prepare for the argument, the in-person one she did at UVA was “invaluable.”

“They knew exactly where the pressure points were in my argument, and I feel like the argument that I ended up giving in the Eleventh Circuit was closest to what happened during the En Banc Institute moot,” Brady said. “They just really were able to zero in on the things that the judges were actually wondering.”

She also said that while she did moots with colleagues and other attorneys in her circles, the panel assembled by Wang featured experienced, well-established names — adding a level of intimidation that helped prepare her to face an 11-judge panel in Atlanta.

Robert McNamara, an attorney with the Institute for Justice, which is set to have an en banc case heard by the Fifth Circuit on Wednesday, said they were also contacted by Wang about doing a moot court.

McNamara, who’s not arguing the case, said that it was “enormously useful” to have a resource like the institute. He also pointed to the institute tapping a student to step in and act as the other party in case, giving lawyers a rare chance to practice their rebuttal in arguments.

“I’m constantly trying to recruit my friends and recruit subject matter experts to to moot and so having an outside resource like this is invaluable,” McNamara said.

‘Healthy Mix’

Wang said that he’ll often turn to faculty members to sit on the moot panels, focusing on professors whose work overlaps with the topic of the argument.

Bertrall Ross, a UVA law professor who writes on election law, said that he prepared for the argument by reading the briefs and reviewing some of the underlying cases, many of which he teaches.

Ross said that a lot of his questions dealt with the issues of precedent and the history and text of the Voting Rights Act, in line with the originalist viewpoint that many of the court’s conservative members espouse.

John Martin, another mooter on the panel, said that he focuses more on election law and less on voting rights, so he didn’t feel as much of an expert as others acting as judges. However, he said that not all the judges on the en banc court are likely to be voting rights experts.

“It’s being able to get questions from a healthy mix of people who will have something very pointed to say about how you’re approaching the law and they bring the expertise, but then also getting questions from people who are more practically simulating what a judge brings to the table with their knowledge on these issues,” Martin said.