Mooting Guidelines and Advice

Transcription

1 Mooting Guidelines and Advice A few things to remember... I shall start with the most basic advice: seniors should address the first ground of appeal; juniors should address the second. This avoids overlap of argument. If you are the senior appellant, make sure you appoint a clerk. Basically, persuade a friend to do you a favour by coming along and doing the timekeeping, having some water ready for the judge and competitors, and passing case bundles to the judge. Make sure you are on time. This would seem obvious to any sensible person yet you would be astonished by how many people are incapable of being punctual. Obviously, being late would reflect poorly on you as a competitor. Prepare your case bundles and make them neat and easy to follow. Case bundles consist of printed cases (usually from Westlaw or LexisNexis) which you intend to refer to during your submissions. You may wish to cite a case to support your argument or, if the case is not in your favour, you might wish to distinguish it in some way. Bundles should be unmarked, apart from highlighted passages from judgments which you wish to draw the judge's attention to. Do not read out your submissions verbatim: I cannot stress this enough. A poor mooter relies on a word-for-word transcript of their submissions while a good mooter uses a few notes which he will refer to from time to time. Judges will interrupt you frequently anyway, so learning a speech is a bad idea. Stay calm and speak at a sensible rate and an audible level. Avoid mumbling or speaking too fast as the judge will not be able to follow your argument. Try also to be articulate and beware of colloquialisms. Hand your skeleton arguments to the clerk before the moot; the clerk will then pass them to the judge. Skeletons should be concise. They should essentially contain an outline of your submissions (generally no more than three) and a list of the cases/authorities you intend to use.

2 A few formalities... Be courteous at all times as you will be marked on your courtroom etiquette. Even if a judge is obnoxious, do not rise to the bait. Further, when you are not talking, always remain attentive and do not look bored, no matter how dull the other mooters may be. Make yourself presentable. Male mooters must wear a suit and tie with smart shoes, while females should dress in a formal fashion also, wearing a skirt or trousers, according to personal preference. The senior appellant must begin his submissions with the following: 'May it please your Lordship(s) that I, (...name...), am appearing for the appellant. My learned friend (...name...) shall also be appearing for the appellant, while my learned friends (...name...) and (...name...) shall be appearing for the respondent'. Other mooters need only introduce themselves formally. DO NOT refer to other competitors as 'opponents' or 'colleagues'; this is mooting, not debating. Either refer to them as 'counsel', 'my learned friend' or simply refer to them by their title, e.g. 'the junior respondent'. ALWAYS refer to the judge as 'my Lord' and instead of saying 'you' refer to him as 'your Lordship'. For female judges, the appropriate form of address is 'my Lady' and in the third person 'your Ladyship' should be used instead of 'you'. NEVER give your opinion. Avoid phrases such as 'I think' and 'I believe'. Instead, say 'I put it to the court that', 'it is submitted that' or 'the appellant/respondent contends that'. The judge does not care about your opinion and will not hesitate to tell you so. Keep an eye on the time throughout your submissions and be flexible in your approach. The judge's questions may take you off on a tangent and you need to be prepared for this.

3 More on etiquette PROCEDURAL DOCTRINE: state any known exceptions to the general legal principle first; consider also the relevance of binding and persuasive decisions. Remind the judge(s) if he is bound by precedent and be cautious when citing cases from foreign jurisdictions. DO NOT EXPRESS PERSONAL OPINION. Instead, use the following: My Lord/Lady, I submit that /In my respectful submission If it pleases the court, I would like to offer my first/second/third/etc submission May I submit that /It is submitted that /May I put it to the court that /It is put to the court that This point/case does cast some doubt/light on I accept the point that, however With your Lordship s permission, I would like now to HANDLING JUDICIAL INTERVENTION: when asked a question by a judge, it may be helpful to pause before answering. Respond with phrases such as those listed below: I am obliged to your Lordship/Ladyship With great respect, my Lord/Lady That is indeed an issue which must be addressed my Lord MAKE SURE YOUR SUBMISSIONS STAND ALONE AND ARE ENTIRELY INDEPENDENT: a judge will not be impressed if subsequent submissions rely on, or are merged with, previous ones. CONCLUDING STATEMENTS, which summarise the crux of your submissions, should be eloquent, short and convincing: they are the last things the judge will hear before marking you.

4 More on etiquette (2) CITATIONS Citing cases is crucial to mooting: one of the criteria on which you will be assessed is your use of authorities. One method of citing is shown below: May I direct/draw your Lordship s attention/the court s attention to the case of (e.g. Partridge and Crittenden) reported in the (e.g. second volume of the All England Law Reports) for (e.g. the year nineteen thirty-seven) at page (e.g. sixty-four). N.B. Subsequent references to the same case require only the parties names, not the entire citation. WHEN MENTIONING A CASE, wait for the clerk to give the case to the judge before asking them if they are acquainted with the facts of the case: Is your Lordship acquainted with the facts of the case? POSTURE: stand straight, do not pose or slouch. Face the judge and do not gesticulate excessively. Hand movements are unnecessary in mooting and can be indicative of nerves and/or a poor argument VERY RARELY back down from a strongly argued submission as it suggests that you are presenting a weak argument. Some people would go so far as to say that you should NEVER back down; tenacious mooters, with novel submissions which tackle difficult and contentious points of law will be rewarded with high marks. You should only really back down if your argument is completely hopeless, for example if you were relying on authority from a High Court case which you mistakenly believed had been decided in the House of Lords. This is an extreme example, to show how rarely one should back down.

5 How to do well You will be marked on the following criteria: Presentation and clarity of argument Courtroom manner and etiquette Ability to respond to judicial intervention Use of authorities Essentially, presentation and clarity of argument relates to your ability to present a convincing argument, which is clear and easy to follow owing to a good structure. You should speak at a good rate, not too slow or too fast, and you should be articulate and confident. A good skeleton will aid your structure and give the judge a good indication of the content of your submissions. All your submissions must be independent of one another, else your argument will simply fall apart. With regard to etiquette, you must be on time, formally dressed and polite and courteous at all times. You should show deference to the judge and observe all formalities. However, you should not take inspiration from TV programmes which depict courtroom trials. Firstly, the junior mooting competition has nothing to do with criminal law and the art of cross examination. Secondly, TV programmes often make successful barristers appear to be arrogant mavericks who openly flout the rules; successful mooters obey the correct etiquette. However, try to forge an individual style and avoid obsequious behaviour at all costs. Try to strike a balance. Your answering of questions tests your nerve and, in my opinion, your raw natural ability. Poor mooters will write out speeches, learn them by heart and then get thrown off course by a probing question from an attentive judge. Good mooters will be able to react to such judicial interventions instinctively, by listening to the question, pausing to gather their thoughts, then responding intelligently. As for use of authorities, you must make sure your skeleton argument is tightly constructed and that your bundle is neat, tidy and easy to follow. This will help you to score good marks in this category. Further, you must cite all cases in the correct, formal fashion and should offer the judge a summary of the facts. He will often not require a summary, but make sure you know the facts in case he does. Distinguishing cases effectively will aid your argument and improve your mark, while researching and finding obscure but helpful and important cases can only help your cause.