Moot Court: Patents and Antitrust and Feedback (Oh My)

I have now spent fifteen minutes haranguing on about a per se illegality rule as applied to reverse payment settlement agreements.


Reverse payment settlement agreements.

Sounds unbearably dull, admittedly. But actually, in what I assume is some form of Stockholm Syndrom, I’m finding it pretty interesting. Idea is this: brand-name drug company puts out Drug A. Generic drug company puts out a generic version of A. Brand Name sues Generic for infringing Brand Name’s Patent. Brand Name tells Generic that if Generic stops marketing Generic A and stays out of the market, Brand Name will pay Generic millions of dollars every quarter until Brand Name’s patent runs out. Their lawsuit settles, everyone is happy.

Everyone except all the other generic companies and consumers. Because the thing is, the first generic company gets a kind of mini-patent: no other generic companies can put out their own version of the generic until Generic has put out its version. So, when Brand Name pays Generic to stay out of the market, Brand Name gets a monopoly that can’t be challenged. Translated into English: one competitor pays another competitor to stay out of the market, effectively preventing all other competitors from also entering the market. This implicates antitrust concerns because it is patently anticompetitive. (Pun absolutely intended. Also, if you don’t find this dull, you can read more about it here. The Supreme Court is set to hear basically this exact case in about a month.)

I had to learn all of this because I am in the Albers Moot Court Competition here at BU. Moot Court is different from, say, a mock trial. When you first take a case to court, it goes to trial, and this is the kind of thing you see on Law & Order: witnesses, cross-examinations, exhibits, closing statements, etc. Appeals look totally different from trials. No witnesses, no closing statements, none of that. Instead, lawyers stand up and just make their legal argument and judges interrupt them with questions. Sometimes, you have judges who will just let you get out may-it-please-the-court and then they interrupt you with questions (called a hot bench), other times judges will let you get a bit more out first (a cold bench). That’s what moot court is like. You’re given a fake lower court decision (ours is about antitrust law and patents), assigned a side, you write a brief arguing for your side, then BU brings in attorneys, professors, and/or judges to play the judges while you play the attorneys. Arguments take place in rooms set up like courtrooms in the law tower. You have to wear a suit and the judges wear robes. Afterwards, you get wine and cheese (hurray!) and feedback (hurray-ish).

Every BU Law student will do moot court at least once, in your first year, as a part of your writing class. If public speaking isn’t your thing, though, no worries. Your writing teacher will prep you well, and the oral part of the moot court is graded pass/fail. As long as you put in the work, you’ll do just fine.

If public speaking is kind of your thing, or if you just think it’s fun to argue (very deferentially) with judges, then you can do more moot court your second year. In the spring, there’s the Stone Competition, which is open to all second year law students. The top 32 students from Stone (an average of brief and oral scores)  then move on to the Albers Competition in the spring. That’s where I am now. If you really love moot court, you can join one of the moot court intramural teams your third year, and sometimes second year. (Our teams rock.)

I (mostly) enjoy doing moot court. I prefer a hot bench to a cold bench, because when it’s a cold bench, I don’t know what the judges are thinking. Much easier to try and persuade someone when you know what they’re thinking and why they disagree with you. Plus, it’s just more fun to have a back-and-forth rather than just talk. I did improv in high school and college, so I think of moot court like an improv scene. You prepare, but you don’t really know what’s going to happen. And – also thanks to theatre – I have a loud voice. Actually, as friends, family, and professors will tell you, that’s probably something of an understatement. I have a very loud voice. In our courtrooms, that’s not a bad thing, that’s a bonus!

Next Monday, I argue “off-brief.” That means that while last night I argued on same side I wrote my brief on, next Monday, I have to flip and argue for the other side. I learned a couple of things last night from the feedback: I say “sort of” too often, should pause briefly before I answer questions, and be careful to cut all we-think/I-argue from my vocabulary. I knew that last point, but sometimes, in the moment, a we-think/I-argue still comes out. Judges want me to cut that because, given that it’s coming out of my mouth, we’re all working under the assumption it’s what I think. Moreover, no one cares what my personal opinion is. Just state Petitioners’ position as the unequivocal truth.

Which of course, it is. Till Monday. At which point it becomes unequivocally wrong. Obviously.

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