A moot is a simulated appeal in a superior court, based on a mock fact scenario and judgment from a lower court. No witnesses, just good old fashioned legal argument about whether or not the lower court decision was correct.
Expect to be queried and questioned by the judges as they test you to see just how well you know your facts and the cases surrounding a particular point of law. Mooting is generally run in teams of two or three with the optional third member acting as assisting solicitor.
During the annual ALSA Conference, mooters from across Australia, New Zealand and neighbouring Asian countries are pitted against each other in highly charged legal argument. Contact your law student society for more information on how you can represent your university at the national level.
Timothy McGrath – Timothy is a solicitor of the Supreme Court of New South Wales and a Casual Academic at the Western Sydney University. He has coached numerous successful mooting teams and has participated in domestic and international mooting competitions including representing Australia at the Commonwealth Moot in Hong Kong.
There is much to be said for competing in advocacy competitions while at university. Apart from providing competitors with much needed public speaking experience, participation often assists in the development of critical thinking and associated analytical skills. Importantly, they also afford competitors the opportunity to develop their own style of written and oral advocacy in a virtually consequence free environment.
For all their benefits many students are reluctant to participate in mooting competitions, primarily due to fears associated with public speaking. I have been asked to make some general observations regarding my experience in competing in and coaching teams for mooting competitions in the hope of providing some practical guidance to students competing or considering competing in mooting competitions.
Perhaps the most appropriate place to start is to consider what a moot is. Shortly put, it is a simulated court hearing or trial. Most moots consist of an appeal from a decision of an inferior court on a number of points of law. Occasionally the problem scenario may consist of a first instance hearing but this is not the norm. The problem scenario which forms the basis of the moot is an agreed statement of facts which the parties are bound by and to which they cannot seek to add or depart. The moot involves two teams consisting of counsel and an instructing solicitor for each side.
Commonly the bench is constituted by a single judge with a panel of three judges sitting in the final round(s). Teams are required to prepare written submissions and to deliver oral submissions subject to length and time limits with marks awarded for both.
Moving now to the requirements of the moot in the context of written submissions, it is my experience that many competitors make the mistake of thinking that written submissions are nothing more than a formality to be gotten out of the way and quickly forgotten. Nothing could be further from the truth. This is because written submissions represent the first and last impression that the bench has of a competitor. Indeed, well drafted written submissions present an opportunity for competitors to sow the seeds of their argument in the mind of the bench even before a word is spoken. Moreover, well drafted submissions should encourage the reader to ask of themselves and, ultimately, the competitor certain questions in relation to the problem scenario. This allows the competitor to have a hand in formulating the types of questions which may be asked by the bench allowing him or her to better prepare and respond in oral submissions.
Written submissions should be used as a means of laying the path of the argument which the competitor intends to make in oral submissions. They should be clear, concise and, overall, follow a logical course. They should set forth the facts as relevant to the particular party, the legal points which arise from those facts and, importantly, the relief sought. As a general rule the facts will have greater relevance in problem scenarios involving a first instance hearing as distinct from an appeal. Notwithstanding, it is important to always remember that circumstances alter cases and so the facts must never be glossed over. It is of course impossible to deal in any meaningful way with how a legal argument should be structured in the abstract except in general terms. That being said, some useful observations can be made about drafting written submissions.
The format of written submissions is significant as it can have a profound impact on the reader’s ability to absorb information. Subject to the rules of the particular moot, written submissions should:
use a style and font size which is easily read;
employ consistent and uniform paragraph numbering;
use clear and informative headings and subheadings;
employ a uniform referencing system; and
wherever possible, use pinpoint referencing.
Importantly submissions must be free from spelling and grammatical errors and use plain formal English.
As written submissions should be used as the basis for oral submissions, they should set out the arguments as they are intended to be addressed in oral submissions. It is common in mooting for competitors to structure their written submissions such that they lead with the “strongest” legal argument with “weaker” and/or alternative arguments to follow. The strength of the argument is assessed by reference to the facts and the state of the relevant law. Where additional or alternative arguments are to be raised (e.g. competing arguments in tort or contract) they should be clearly identified as being “further”, “in the alternative” or “further and in the alternative”.
Notwithstanding the above, there is a strong argument for written submissions to be structured based upon the relief being sought (for example, running a weaker argument in equity first followed by a stronger argument in tort because the relief in equity may produce a better result for the client). In my experience competitors and coaches have been reticent to adopt this course because of a fear that it may lead the bench to ask “hard” questions early on in oral submissions. This view should not be accepted and competitors should, as appropriate, structure written submissions based on the relief sought. A competitor who demonstrates that he or she has considered not only the law but the outcome for their “client” will stand out as against his opponent who has not done so. Moreover, it is seems antithetical to the reality of mooting to adopt a course designed to avoid answering questions, at whatever stage, during a moot.
Notwithstanding the often dry subject matter, written submissions must be persuasive. They should not only inform the reader of the relevant facts and law but encourage them to adopt the author’s reasoning and conclusion(s). To this end they should use persuasive language, avoiding of course hyperbole and rhetoric. They should, where appropriate, use techniques such as examples and analogous reasoning. They might also point out the dangers associated with adopting a particular course other than that propounded in the submissions (to take a common example; “to do otherwise would open the flood gates”).
Competitors in their written submissions should be mindful of:
only writing so much as is necessary to convey their argument to the reader;
never intentionally omitting an argument which is to be addressed in oral submissions; and
avoiding “over citing” authorities and the urge to extract large parts of judgments.
Oral submissions are an opportunity for competitors to demonstrate their knowledge of the particular legal matters the subject of the moot and to persuade the bench to their point of view. This is done, not by the competitor reading from their written submissions or by making an uninterrupted speech but by answering questions from the bench. In my experience, successful mooters are those who are able to engage in an academic “conversation” with the bench characterised, within the formal environment of the court, by a “free exchange” of ideas between the competitor and the bench. Competitors must not only be prepared and able to answer questions put forward by the bench but to some degree encourage the bench to ask certain questions. How this is done is ultimately a matter of style on the part of the competitor and indeed, to a lesser extent, the bench. Notwithstanding, some useful observations can be made in respect of the form and style of oral submissions.
The first matter to note is that competitors should never enquire with the bench as to whether or not it “requires a recitation of the facts”. Competitors should have incorporated the facts into their oral submissions such that they are inextricably linked to their legal argument. Moreover, those appearing for the applicant should be in a position to provide a brief overview of the facts in one or two minutes. If the bench is across the facts, it will direct the competitor to move one.
The second point is that competitors should never seek “leave” to dispense with “full citations”. This assists neither the bench nor the competitor and suggests that the competitor either is unprepared or fails to understand the importance of precedence. This should never be done.
Apart from the above, competitors:
should commence their oral submissions by providing a précis of the legal arguments they intend to address and the relief being sought;
representing the applicant, should always address matters raised in the written submissions of the respondent;
representing the respondent, should always respond to matters raised in the written and oral submissions of the applicant;
should provide a summary of their arguments and relief sought at the conclusion of the submissions for their party;
should be able to address the key points of their argument in a quarter of the time allotted for oral submissions (i.e. in 5 minutes if the time allotted is 20 minutes);
should, whenever moving onto a new point, identify which part of their argument and/or the relief to which it relates (this is commonly called “signposting” and assists the Bench to understand the submissions)
should never cite a case which they have not read and/or do not know the facts of.
It is important for competitors to remember that that they are in control of their submissions at all times during the moot. Often competitors, for obvious reasons, are a little too deferential to the bench. Whilst they must show due deference to the bench, it is quite natural and appropriate that competitors will on occasion disagree with propositions put by the bench. It is perfectly acceptable for a competitor to indicate that he or she does not agree with a view expressed by the bench in an appropriate manner (e.g. “those are not our submissions” or “that is not a view which we submit your honour should take”). Equally, the competitor may agree with the bench (e.g. “we would adopt your Honour’s view”). In circumstances where it appears that the Bench and the Bar have come to an impasse, the competitor should simply move to his/her next submission (e.g. “I see that your honour is not with me on this point, I will move to my next submission”).
As can be seen from the discussion above, mooting is much more than a good oral presentation. It requires competitors to develop a persuasive legal argument and to present it both in writing and orally. From experience, the best mooters are those who seek to lay the foundation of their argument in clear and logical written submissions and to simply address a few key points, in a highly persuasive way, in oral submissions.