Australasian mooting manual [2nd edition.] 9780409329889, 0409329886

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LexisNexis Skills Series

Australasian Mooting Manual 2nd Edition

Joel Butler BA (Hons) (Syd), LLB (Bond), LLM (Hons) (Syd) Assistant Professor, Director of Mooting, Faculty of Law, Bond University Barrister, Supreme Court of New South Wales Legal Practitioner, High Court of Australia, Supreme Court of Queensland

Terry Gygar RFD, LLB (Hons) (Bond) Associate Professor, Director of China Programs, Faculty of Law, Bond University Barrister, Supreme Court of Queensland and Federal Court of Australia Legal Practitioner, High Court of Australia

LexisNexis Butterworths Australia 2012

To all my mooters who have been a source of pride and inspiration Joel Butler For Linda, Corrinne and Karl Terry Gygar

AUSTRALIA

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USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Butler, Joel. Australasian Mooting Manual. 2nd edition. 9780409329162 (pbk). 9780409329889 (ebook). LexisNexis Skills Series. includes index. Moot courts. Mock trials. Gygar, Terry.

Series: Notes: Subjects: Other Authors/Contributors: Dewey Number: 340.0711.

© 2012 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 1997. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Bembo & Gill Sans. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

FOREWORD This is an excellent book on mooting. It deals with a range of issues that will prepare the participant for this increasingly important phase of modern legal and general education. Fortunate are a people who live in a society that agrees to resolve serious differences by careful argument in a public forum before an independent decision maker, rather than by guns, influence, money and brute power. The moot is thus a living symbol of the aspiration of peaceful and lawful resolution of conflict. Independent decision making is not the only way to resolve conflicts. Increasingly, for reasons of cost, disempowerment and delay, societies are turning to alternative methods of resolving conflict: mediation, conciliation, negotiation and arbitration. But in most countries that aspire to the rule of law, independent decision making is vital in the largest and most important conflicts. That is why mooting retains its importance in legal training. It is why mooting is now increasingly popular in schools, as a symbol for young citizens of how to tackle hard problems in a peaceful, orderly, principled and civilised way. Like a good mooter, or indeed a good advocate, the authors have tackled the topic in a logical and attractive way: A useful introduction, including notes on the history of mooting in the common law tradition, going back to medieval times; An analysis of the objective of a moot and a summary of the critical skills deployed; A description of mooting from within, ie from the viewpoint of beginners and the skills they will have to deploy; Sound advice on analysis of the problem in the moot and how to prepare to tackle it; The description of the writing of the written submissions of the parties (the memorials); Indications and suggestions for preparation to make the oral submissions which are the centrepiece of most mooting; Hints about personal presentation that will enhance, and not distract from,

the intellectual task in hand; A description of the actual day of the moot, with anecdotes from past triumphs and disasters; Advice for academic advisors and coaches of mooting teams; Wise counsel for those who act as judges in moots; An introduction on the growing practice of high school mooting; and A few parting shots on the main mooting competitions that are conducted for Australian law schools and in the international legal community. Even in my time at law school, 50 years ago, we had moots. They were conducted in the terrifying atmosphere of the court rooms of the old Supreme Court building in Sydney. Many of those court rooms boasted a dock from which, in the same afternoon, a prisoner may have been taken to be hanged by the neck until dead. My first moot was before Mr Justice B P Macfarlan. I was frightened and nervous. But he was charming and benign: a true model of a courteous judge. I got through the experience, a kind of rite of passage. And then we all went to dinner at a great hotel, since demolished, in the presence of the judge who (to us) seemed grander and larger than life. I always remembered that experience when judging moots, and sitting in court, decades later. This book is mainly intended for Australian law students. It is therefore very well targeted because their predecessors have experienced great success in mooting in the international sphere. In the past two decades, for example, Australian universities have been the winners or runners-up in the Phillip C Jessup International Law Moot no less than 13 times. This is a record of success better than any country in the world, including the closest rival to the Australian teams, the United States of America. This book is thus an insider’s perspective, aimed to give readers the winning ingredient. In the nature of the internet today, it is likely to fall into the hands of Australia’s opponents across the globe. But that will only sharpen their skills and make the competitions more exciting. The co-author, Joel Butler, was appointed Director of Mooting at the Law School at Bond University in 2007. He is well positioned to write on this topic. His teams have achieved many successes. They have won nine competitions, including four international competitions in a row in 2011– 2012 (ICC Competition 2011; Vis (East) 2011; D M Harish IL moot 2012; and BFSU IP moot 2012). In addition they have taken home 30 advocacy and

memorial awards. So Mr Butler knows what he is writing about. Of course, there are particular points that any experienced reader may disagree with. For example his suggestion (at 5.15), ‘call me conservative, but long hair on a male mooter is not desirable’, betrays an orthodoxy of attitude that most judges of my acquaintance would not reflect or would keep firmly under control. I am old enough to remember when a young female lawyer was sacked when she turned up to work wearing trousers. We have moved on since then. Still, Joel Butler has written as he sees things. And his use of the second person (‘you’) in most of the chapters has allowed him to speak directly to the most important person to whom the book is addressed: the student mooter. As one who, in judicial office, participated in dozens of moots, including in the great building of the High Court of Australia in Canberra, I can say I wish I had read the chapter addressed to the judges before I embarked upon the task. Still, mooters should always keep in mind the enormous demands and pressures placed upon serving judges. Rarely will they have had the time to devote to the problem the preparation that, objectively, is desirable. Judges, for their part, need to take into account the wise counsel in this book concerning the balance to be struck between objectivity, candour and honesty in assessment, and encouragement and provision of suggestions that all of us need to enhance our journey through life. Mooting in law schools is now a much larger part of the curriculum than it was in earlier decades. This is a desirable development for a legal system that still depends heavily on talents and skills in oral persuasion. The shift to written submissions, at trial and in appellate courts, must now be reflected in training in the talents essential to written persuasion. Yet, for those who are called to it, there are few days more exhilarating in life than being an advocate: entering the mind of another human being; using all the signals of persuasion — words, gestures, body language, and eyes — to gather a reluctant recipient into an understanding and hopefully an embrace of the propositions advanced. To the extent that this book prepares young readers for participation in the privileged vocation of advocacy, it contributes to the role of the courts and tribunals of a nation greatly blessed to live under the rule of law. And that is a noble objective.

The Hon Michael Kirby AC CMG Former Justice of the High Court of Australia Sydney April 2012

PREFACE This manual is intended to assist mooters to moot. If you haven’t mooted before, it is meant to provide you with everything you need to know about mooting from before you even begin to prepare up until the finals where you will be delivering that award-winning performance. If you have mooted before, then this book should still provide you with lots of tips, and some reminders, which will help you be an even better mooter. Although some remains of the original edition of this work, mooting has changed a great deal since the first edition was published 15 years ago, and the book has therefore been radically remodelled and updated to take account of this. The first edition, written by Professors Terry Gygar and Anthony Cassimatis, was aimed mainly at mooters within university faculties. The updated second edition is aimed instead at mooters who will be competing in competitions, representing their faculties, in either Australia or internationally. (Although it should be noted that there are specific chapters aimed at facilitating in-faculty and in-course moots and mooting at a highschool level.) The revision to the new edition has been undertaken by Joel Butler, who has acted as Director of Mooting at Bond University for the past half decade. Some universities provide student moot teams with limited assistance, including, in some cases, no coaches or academic advisers. This book, therefore, aims at providing the mooter with all the experience that a coach or academic adviser would provide if they were there in person. If you are a faculty member or student coach who has not mooted before, the book will give you all the guidance you need to prep your team for their competition. It is important for you to know that the assistance that can be given to teams in some competitions is quite restricted, so, where the rules are strict, this manual can stand in for you and allow the students effectively to ‘coach themselves’. The book is addressed to ‘you’. That is, to the reader as second-person.

Not only does this emphasise that this is a manual that is meant to ‘instruct’ you, the mooter, on how to moot, we hope it is also easier to read like that! Mooting is not for everyone. However, we have found that most students not only gain great benefits from their participation in mooting, but on the whole thoroughly enjoy themselves during the process. We have also, where appropriate, included some anecdotes about moots and mooters to illustrate our point. Where we have done so, of course, the competition’s identity and the mooter’s identity have been kept anonymous. As noted, the book is also written in the context of the tertiary law student who is considering involvement in, or is actually involved in, a competitive moot. The reason for this is that, although many university law faculties now integrate moots as assessment exercises into their curricula, it is much less likely that students will prepare for subject-based moots nearly as diligently as they will for a competition. Of course, if you are willing to prepare that hard, then using the tips in this manual you will probably score a high distinction for that moot.1 We should also state that it is aimed at the serious mooter. That is, the law student who wants to enter the competition with the intent of doing all they can to win. There are many students who join moot teams ‘for the experience’ or to get something on their CV, but aren’t really interested in ‘giving it their all’. This book will seem to them to be asking a little too much: too much of their time, commitment, passion and ambition. The book will help those mooters nonetheless, because its tips can be applied in a lukewarm manner. But we have addressed the contents of these pages to the mooter who intends to take their moot seriously and do whatever they can to do their best. The manual may also be useful for those readers who are involved in mooting at a high school level. For those of you who are so brave, the expected level of preparation set out in this manual is of the highest standard and, until you have enrolled in your law degree, you could not possibly hope to master the intricacies of the law, legal principle and public policy that are part and parcel of what is expected of a university mooter. However, reading this manual will give you an idea of the exciting possibilities that are available once you get to university. Finally, this book deals mostly with moots in the form of appellate proceedings. It is not a book to look to if you

wish to learn about the specialised requirements of trial advocacy. Joel Butler Queensland, May 2012 Terry Gygar Beijing, May 2012 _______________________ 1.

High distinctions not guaranteed.

CONTENTS Foreword Preface

Chapter 1

Introduction to Mooting

Moots Today The Importance of Skills Training The Objective of a Moot Some Further Reading

Chapter 2

The Mooter and Their Expectations

Key Aspects of a Good Mooter Girding Your Loins: What to Expect in a Competition

Chapter 3

Before the Moot: The Problem and Preparation

Initial Stages — Deadlines and Timetable Initial Stages — The Rules Initial Stages — Planning Team Time Initial Stages — Moots Taken as Credit Initial Stages — Physical Resources Initial Stages — Preparatory Research The Problem is Released! The Structure of the Moot Problem Good Problems and Bad Problems

Clarifications Conclusion

Chapter 4

Written Submissions — The Memorials

Research — Broad Issues Conceptualising the Case Written Submissions — Particular Issues Some Stylistic Issues The Lead-up to Submission

Chapter 5

Preparing for Oral Submissions

Basic Principles When to Begin Mooting? The Structure of Oral Submissions The Key (Or at Least One of Them) — Flexibility Practice, Practice, Practice Moot Materials — What You Should Be Taking with You into a Moot, and How You Should Arrange Your Materials Authority Presentation Other Oral Advocacy Skills Responding to Questions A Final Difficult Question — Who Should Moot?

Chapter 6

The Moot!

Before You Leave for the Competition — The Last Days

On the Day Generally Planning Ahead — Future Moot Teams Good Luck!

Chapter 7

The University and Faculty

The Benefits of Involvement in Mooting Cost, Expense and Resources Moots as Subjects Scheduling and Academic Pressures Strategic Involvement

Chapter 8

Academic Advisers and Coaches

Team Selection Timelines Workload and Expectation Management How Much Help? When to Moot? Student Coaches Issues

Chapter 9

Judges and Judging

Preparation Judging Criteria In the Judging Room Feedback

Chapter 10 Organising a Moot Purpose Scheduling, Timetabling and Resources Structure Moot Topic Judges Sign-up and Drop-outs

Chapter 11 High School Mooting Preparation The Principle of the Precedent — Basic Legal Reasoning Preparing for the Oral Rounds The Day of the Moot — Judging Criteria

Appendix 1 Overview of Competitions Australian Domestic Competitions International Moots

Appendix 2 High School Mooting Problem — Mudflats Shire Council v Dirk Index

[page 1]

1 C H A P T E R

Introduction to Mooting ‘What is a Moot?’ Moots Today The Importance of Skills Training The Objective of a Moot Some Further Reading

What is a ‘Moot’? 1.1 The first English use of the word ‘moot’ referred to a folk meeting of villagers who had come together to discuss local affairs. The first written form of the word is found in the Kentish laws of the eighth century AD, but it probably is very much older (the English historian J H Baker suggests its use can be traced back even to prehistoric times1). Originally, those village discussions were not necessarily disputes — anything of concern to a local community might be discussed — and there was no-one present who could be identified with a contemporary lawyer or judge. As early as 888, however,

we can find reference to a moot meaning specifically an ‘action at law’. The first reference we have to a ‘moot’ meaning what we usually understand it to mean these days, an ‘appearance before a mock court’, is in the fourteenth century. In the Year Book for 1356 we find mention of moots [page 2] among the ‘apprentices in the hostels’ (Year Books were the earliest form of law reports and date back to 1268). Moots were basically the learning exercises that were undertaken by those who wished to practice as barristers (although they were not originally referred to as such) before the King’s courts. Moots took place at the English ‘Inns of Court.’ Originally an ‘Inn’ was the townhouse of noblemen, where they stayed in London when not on their estates. The ‘Inns of Court’ — there are now four (the Inner Temple, Middle Temple, Gray’s Inn and Lincoln’s Inn) — were where aspiring barristers lived and learned from at least sometime in the 1300s. The institution of the moot was a crucial part of the early barristers’ training (in fact the term ‘barrister’ originates from the practice of the moot. The mooters used to sit ‘at the bar’ — with ‘bar’ meaning, effectively, the mooter’s seats — from which later the term ‘barrister’ would evolve2). The moot originated in a time before the printing press. Where there were no textbooks providing students with a readily available and easily accessible explanation of the law, the moot filled a twofold purpose: it was first an opportunity for participants to learn the law, and second for them to learn to practise the law. The moot was an exercise that effectively simulated a court appearance, and was one of three exercises undertaken by aspiring barristers.3 Originally there were four ‘ranks’ of members of the Inns — Benchers, Utter Barristers, Inner Barristers and Clerks — and all but benchers (the most experienced of the four) were required to live at the Inns if they were in London. This was because the exercises — and particularly the moots — were undertaken after the evening meal. Usually, the Benchers presided as judges. The Masters of the Inner Bar (or Inner Barrister — the junior of the two barristers) were expected to recite the

pleadings related to the case. This was done by memory. At a time when printing did not exist, this task, involving as it did memorisation, was an important exercise as it required the student to know and be able to recite precisely the cause of law upon which they relied. At that time (as for many years afterwards) deficiencies in what could be extraordinarily complex pleadings could be fatal to a case. A precise memory was therefore crucial (we’ll come back to this later — it’s equally crucial in a modern moot!). The senior, or Utter Barristers, were expected to argue the case. Although they were meant to rehearse their arguments, and they had to deliver their arguments in writing to the butler at the dinner the day before the moot, [page 3] there are many records that indicate that an Utter Barrister was prohibited from reading their arguments4 (another point equally important for today’s mooters). The requirement to continue to moot was imposed upon barristers even after their call to the Bar. In the fifteenth and sixteenth centuries, no one was permitted to have a chamber or undertake legal practice unless he kept on with mooting for at least three years after his admission.

Moots Today 1.2 Following the advent of the printing press and the institution of formal university training for lawyers, the institution of the moot is no longer as important as it was in its heyday. However, most law schools in Australia and the English speaking world require their students to moot at least once during the course of their undergraduate legal training. In addition, there are a number of mooting competitions, in Australia and around the world, that are available for law students to compete in. Most moots — certainly most competitions — take the form of an appellate court proceeding. That is, a team of two students will be required to present an appeal from a lower court decision, and two students will represent the respondent, resisting the appeal. When the exercise takes place within a university course, as part of that course’s assessment, it may be a single student against another. When the moot is part of a competition, usually the

team will be required to argue both the appellant and the respondent side at least once — sometimes twice each. Usually in competitive mooting, universities will be represented by a team of four or five students, with two students arguing the appellant side and two the respondent side (the composition of teams and roles within the team will be discussed further in Chapter 2). A typical moot will allow each team approximately 20 to 40 minutes to make their case (thus, about 10 minutes to 20 minutes per mooter) and may allow for rebuttal and, more rarely, also surrebuttal. What of the mooting tradition in Australia? Following the American model, one would expect to find student-organised moots in Australian universities and Bar Associations from the very beginning of legal education in Australia. Law faculty handbooks, however, prior to the 1950s make no mention of moots. The moot court is first mentioned in the 1959 Handbook of Melbourne University. In Queensland, mention of mooting appears first in 1967. [page 4]

The Importance of Skills Training 1.3 There are good reasons why students should consider getting involved in mooting — and why law faculties and universities should not only support student teams in external competitions, but consider integrating moots more into their curriculum. For a long time now, both here and overseas, there has been wide criticism of the lack of skills training in university legal curricula.5 The Australian Law Reform Commission argued that legal education must be reoriented ‘around what lawyers need to be able to do’ rather than remaining ‘anchored around outmoded notions of what lawyers need to know’.6 Mooting is not only an excellent way to incorporate one of the key skills a lawyer needs to master into the curriculum, but students usually enjoy it! And it is not only the aspiring barrister that needs to be able to master the skills of the mooter — all lawyers need to be able to communicate clearly and put their client’s case in

persuasive manner. Lawyers work with language, and for the law student there is no higher test than a moot to determine their level of mastery. Moots are recognised as being an essential part of a well-rounded legal education. Though there is great variety in the mooting programs offered, the basic philosophy is the same for all: students (whether or not they wish to specialise in court advocacy) benefit from instruction about advocacy and from the experience of preparation and presentation of their own moot.

The Objective of a Moot 1.4 What is the objective of a moot? This question begs a number of more fundamental questions. Given that moots are essentially exercises in legal advocacy, at the very core is the question ‘What is the object of legal advocacy?’ Here is what one judge of the Australian High Court has to say: In the end, the object of advocacy is, by communication, to persuade. It is to influence the decision maker (judge, magistrate, tribunal member, juror)

[page 5] to accept the propositions advanced by the advocate leading to the success of the advocate’s cause.7

If ‘persuasion’ is the object of legal advocacy, then clearly one object of a moot is likewise to persuade someone (ie the moot judge). The objective of a mooting program might therefore be explained as the development and improvement of skills of legal persuasion. For millennia this skill used, of course, to be referred to as rhetoric (more on that below). Two of the ancient masters of rhetoric, Cicero (106–43BC) and Quintillian (35–100AD) called for the rhetorician to master five distinct elements: 1. Invention; 2. Arrangement (or disposition); 3. Style (or elocution); 4. Memory; 5. Delivery, Since the orator worked alone then, we can add to the elements that must be mastered a sixth:

6. Teamwork, And, since mooting — especially competitive mooting — is highly competitive a final, seventh: 7. Discipline (or ‘hard work’ — we could perhaps make this a distinct eighth …). Mastering each of these eight elements is not only crucial if a student expects to do well in a moot, but is also a key component of a law student’s academic skills.

Invention 1.5 Cicero begins his description of the task of the orator as having to determine ‘what to say’. Generally speaking, this is done for the mooter, since the ‘questions to be argued’ are usually made clear in the moot problem. One of the tasks that the law student is required to master from very early on in his or her degree is to ‘issue-spot’ — and the same goes for a moot. Even where the very broad questions might be set out in the moot problem, there will be some requirement to issue-spot — to identify the content of what the mooter ‘is going to say’. A moot problem will usually be presented in the following form: you will be provided with a ‘fact scenario’ of between two and three pages, and one or more precedent cases (this is discussed more below in Chapter 3). The fact problem will be similar to but not identical to, the precedent case. It is those crucial differences that will present the mooter with their moot points. Are the factual differences between the problem and the facts in the [page 6] scenario case similar enough so that the rule of law in the precedent case should apply? Or so different that a different rule of law should apply? If the latter, which applicable rule is the appropriate one? The moot, therefore, gives students exactly the same sort of task that they will face in problem-based assessment throughout their degrees.

Arrangement or Disposition of the Argument

1.6 In a well prepared moot, you will have an array of different possible arguments you can make in relation to any one issue. Some will be stronger, some weaker. The strategic choice of which to argue first (in memorials or orally — and there may be a difference) or which to ignore altogether, or to abandon quickly, is an important one. Similarly, a poorly organised argument that does not logically flow, or an argument where one submission contradicts another, will often be fatal to your chances in a moot. Logical arrangement and a certain elegance of structure is something that you should aim for — in the same way that any law student who can master the same skills will do better. In fact, the moot-as-assessment is a better way than many others to test these elements of a law student’s skills. Where in many institutions there is no regular chance for a student to receive feedback on their legal reasoning, a moot, with the capacity for a judge to intensively question the student, is an excellent means whereby to force a student to clarify sloppy thinking. A ‘this does not make sense’ comment written on an end of semester essay rarely prompts a student to pick up pen and re-write the offending passage (How often do you do this?). In a moot, the mooter must correct themselves (or attempt to do so) immediately.

Style or Elocution 1.7 When a group of medical practitioners or engineers or farmers come together to discuss a course of action, would you expect to find identical ways of deliberation and determination of the questions before them? Wouldn’t you expect, in fact, within each of these groups, the development over time of different procedures for discussion and decision? These differences would reflect the different functions that each body needs to fulfil. The retention of historical procedures and practices hopefully ensures increased efficiency in the performance of the aims of the body in question. In the same way, legal advocacy in courts of law has evolved, with its own unique rules and forms of expression. Today, certain procedures, modes of address and other practices are adhered to in courts of law. This adherence hopefully results in increased efficiency in the attainment of the principal aim of the legal system, namely justice. In the law school, of course, we refer to this as ‘legal reasoning’. Legal

reasoning (requiring a student to begin to ‘think like a lawyer’) requires the student not only to learn a particular technical language, but learn to communicate ‘legal issues’ in a particular way, identifying material facts, [page 7] relevant legal tests and rules, and applying one to the other to argue a particular case or solve a legal problem. The structure of legal argument is, although logical, quite particular, and different to other forms of communication. One particular practice, which advocates in court must quickly learn to deal with, is the process of questioning that their judges engage in. This questioning is essential for the attainment of justice. It occurs in all courts and tribunals — especially, though, in appellate tribunals. Being able to deal creatively with this judicial questioning is an essential skill of the advocate. This, too, is where persuasion is so important. Often the use of one particular word or phrase will be more convincing than the use of another in persuading a judge that a submission is correct. We’ll talk about this extensively in Chapter 5. A moot program will also have as one of its objects learning to become comfortable with court etiquette, practice and procedure. Mastery of these areas is an essential part of the development of the skills of legal persuasion. This, too, is part of the ‘enculturation’ necessary to produce an effective and professional lawyer — whether that lawyer is a barrister or not. There is, however, an even more important aspect of legal persuasion that moots are excellent at developing: the preparatory work to persuasion — legal research.

Memory and Research 1.8 It is noted above that moots involve ‘legal’ persuasion. A ‘debater’ may win a debate by skilful use of language despite having little background knowledge of the topic debated. You can’t get away with that in a moot. Legal advocacy is fundamentally different to both public speaking and debating (a fact that many students have some difficulty in adjusting to). Schools of rhetoric taught specific techniques for memorising complex, and

large, amounts of information. As we saw earlier, in the early Inns of Court, trainee barristers were required to engage in exercises testing their ability to memorise, prior to being tested on their ability to argue ex tempore. The advocate must have mastery of a set body of knowledge that relates to the problem being considered. In general terms this body of knowledge comprises: the relevant facts; and the relevant legal rules, principle and policy. It is a truism that, in legal advocacy, the advocate who has command of the ‘facts’ and the ‘law’ without having great powers of persuasion will always do better than the eloquent orator who is ignorant of the ‘facts’ or ‘law’. Obviously, the most successful advocates are those who can combine mastery of the facts and law with eloquence. The preparation of persuasive legal argument also demands the mastery of legal authority, and principle and policy. This forms the foundation of all legal advocacy. It involves skills of legal research and analysis. It requires the [page 8] capacity to structure the relevant information in a logical and persuasive way. It requires hard work. It also requires you to remember a large amount of law (of course, it also requires you to understand and to be able to explain that law). In many law courses these days (in fact, in many university courses, and especially during high school) the capacity of a student to ‘simply remember facts’ is de-emphasised. You can’t get away with that and be a good lawyer. And that goes for solicitors and barristers — and it especially goes for mooters. If you were to go to a client meeting and show that you had no idea about the actual law that was affecting your client — well, you would very quickly have one less client. As we’ll discuss in Chapter 5, although you don’t have to have memorised absolutely all of the law relating to your moot area, the more you have the more impressive you will appear — and the better you will do.

Teamwork

1.9 All successful legal advocacy involves an ability to work with other people. Barristers in court must be able to work with other barristers, their instructing solicitors and their clients (and with sometimes difficult judicial officers and other court officials). It is therefore an object of mooting programs to give you the opportunity to work with other students as a team. Legal persuasion improves with efficient teamwork. Many students just don’t like teamwork. I certainly didn’t when I was a student — I avoided it whenever I could. But moot competitions (all of them) require a team of at least two. And experience has shown that a team that works well as a team always does better than one that does not. More on this below in Chapter 2.

Hard Work 1.10 It’s a truism that the harder you work, the better you’ll be at whatever it is you’re doing. As I like to tell my moot team members, an Olympic athlete doesn’t get to the Olympic Games without devoting their lives to their sport. The harder you work at moot preparation, the better you’ll do. Mooting isn’t the Olympics, I hear you say? Actually, it is. For law schools it is really the only competitive pursuit (relating to the law) where a team from one university can be pitted against a team from another. Some universities take mooting quite seriously, and the rewards from a successful mooting career can be worth it. All law students need to differentiate their CVs as much as possible. A distinction-level student, with a couple of moot awards as well, who is applying for a job at a top-tier firm, is likely to fare well against another distinction-level student without those awards. Although you may not believe it, the sense of satisfaction that mooters have when they have come out of a competition — not necessarily winning — knowing they’ve quite possibly worked harder than they ever have previously in their life, is also very fulfilling. I need more than the fingers [page 9] on my two hands to count the number of students who have told me that mooting was the most fulfilling, exciting thing they did at law school. I’m not

making that up.

Some Further Reading On Rhetoric Aristotle, The Art of Rhetoric, Heinemann, London, 1975. Cicero, De Oratore, Heinemann, London, 1959. Quintilian, The Institutio Oratorio, Heinemann, London, 1920. J Gleeson and R Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, The Federation Press, Sydney, 2008. On the History of Mooting and of the Bar H Rashdall, The Universities in the Middle Ages, Vol 1, Clarendon, Oxford, 1936. W S Holdsworth, A History of English Law, Vol 2, 3rd ed, Methuen, London, 1923. W C Richardson, A History of the Inns of Court, Claitor, Baton Rouge, 1975. J R V Marchant, ‘The Middle Temple Records’ (1905) 84 Law Quarterly Review 347. W S Holdsworth, ‘The Disappearance of the Educational System of the Inns of Court’ (1921) 69 University of Pennsylvania Law Review 201. W R Prest, ‘The Learning Exercises at the Inns of Court 1590–1640’ (1967) 9 Journal of the Society of Public Teachers of the Law 301. C Walsh, ‘The Moot System’ (1899) 60 Law Quarterly Review 416. J H Baker, An Introduction to English Legal History, Butterworths, London, 1990. J H Baker, ‘Counsellors and Barristers: A Historical Study’ (1969) 27 Cambridge Law Journal 205. J S Douglas, ‘Readings and Moots at the Inns of Court: Education at the Bar’ (Speech delivered to the Selden Society, 31 August 1990) at On Mooting and Advocacy Generally K Llewellyn, ‘A Lecture on Appellate Advocacy’ (2005) 7 The Journal of Appellate Practice and Process 173. J Snape and G Watt, How to Moot: A Student Guide to Mooting, 2nd ed,

OUP, Oxford, 2010. J Curthoys and C Kendall, Advocacy: An Introduction, LexisNexis Butterworths, Sydney, 2006. P Dobson and B Fitzpatrick (eds), The Observer Book of Moots, Sweet and Maxwell Ltd, London, 1986, pp 3–4. A Lynch, ‘Why Do We Moot? Exploring the Role of Mooting in Legal Education’ (l996) 7 Legal Education Review 67. D Bentley, ‘Mooting in an Undergraduate Tax Program’ (1996) 7 Legal Education Review 97. [page 10] M Kirby, ‘Ten Rules of Appellate Advocacy’ (1995) 69 Australian Law Journal 964 (and the references cited therein). M Kirby, ‘Rules of Appellate Advocacy: An Australian Perspective’ (1999) 1 The Journal of Appellate Practice and Process 227.

_______________________ 1.

J H Baker, An Introduction to English Legal History, 2002, Butterworths-LexisNexis, 4th ed, London, 4.

2.

See J R V Marchant, ‘The Middle Temple Records’ (1905) 84 Law Quarterly Review 347, 347–8.

3.

The others being the ‘reading’ and the ‘bolt’. In a reading, a barrister would read a statute, then discuss its context and effectiveness. Historians are not sure as to what ‘bolting’ describes, but from the scant records it seems to be very much like a moot.

4.

Marchant, 348.

5.

See, for example, Joel Butler and Rachel Mansted, ‘The Student as Apprentice: Bridging the Gap between Education, Skills and Practice’ [2008] 1 Journal of the Australian Law Teachers Association 287; Cecil Walsh, ‘The Moot System’ (1899) 15 Law Quarterly Review 416; Hugh Bellot, ‘Teaching by Moots’ (1910–11) 36 Law Magazine and Review: A Quarterly Review of Jurisprudence 445. See more recently, Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) (‘The Pearce Report’) Chs 1–2. See comments and references provided by Marilyn Le Brun and Richard Johnstone, The Quiet (R)evolution: Improving Student Learning in Law (1994), 12; Roy Stuckey et al, Best Practices for Legal Education: A Vision and a Road Map (2007), 11.

6.

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1999), [2.21].

7.

Kirby J, ‘Ten Rules of Appellate Advocacy’ (1995) 69 Australian Law Journal 964.

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2 C H A P T E R

The Mooter and Their Expectations Key Aspects of a Good Mooter Girding Your Loins: What to Expect in a Competition 2.1 In this chapter I intend to summarise briefly what you should be expecting before you set out to prepare your moot as well as summarising those personal characteristics that you should be aiming to cultivate, that will make you a better mooter (and sometimes a better law student, I would suggest).

Key Aspects of a Good Mooter 2.2 What will make you a good mooter? All the same things that make you a good law student. A willingness to work hard, a capacity to work as part of a team, the capacity to undertake effective legal research, the possession of excellent communication skills (both written and oral), patience, fortitude, an eye to detail, having time management skills and the capacity to work under pressure, a knowledge of legal research materials, a good knowledge of the law, a creative mind as well as a competitive spirit and a good dose of

resilience. Sounds like a lot? It is. But these skills are exactly the skills you need to succeed in law school — and the better you are at these, the better a law student you will make … and the better a mooter you will be. [page 12] Mooting is the closest a law student will get to ancient gladiatorial combat (and yes, some mooters, and some universities, do take it this seriously). Mooting competitions are intensely competitive — after all, the stakes are high when winning mooting awards enhances a law faculty’s reputation — in the market place and with current and future students. Basically the new mooter should have the same attitude to their engagement in a mooting competition as a professional athlete does to their competition. The more time and effort that goes into the preparation for a mooting competition, the more likely that the competitor (for that is what mooters are) will do well. To do it properly, therefore, will require hours and hours of work — and for the big competitions, literally hundreds of hours of preparation. Mooting coaches and academic advisers can all relate to the experience of the response to the traditional admonition to new mooters — ‘You will find this hard work! You will spend more time at this competition than you will at any of your law subjects! Much more!’ The initial response on the part of the mooter is usually skepticism: ‘I am up to it. I am sure it will be easily manageable and it’s not all that much work.’ There is inevitably a later discussion where the mooter will exclaim (possibly after an exhausting 36 hours of memorial editing), ‘I never imagined it would be so much work!’ So lesson one is that you should expect to work hard — in all probability harder than you’ve ever worked before.

Girding Your Loins: What to Expect in a Competition 2.3 Most mooting competitions are not just about the experience of being on your feet in the courtroom — a huge amount of work is done beforehand in preparation for that experience of the oral rounds. And it is important

preparation because it will provide you with raw materials you will need to succeed in the rounds. Preparation of the written submissions (often called, after the American fashion, ‘memorials’) is crucial in some moot competitions because the memorial scores are taken into account in determining the winner of each of the oral rounds. In addition, many competitions also provide memorial prizes (not perhaps as prestigious as winning the competition, but not to be sneezed at nonetheless). I will outline below some of what you should expect in relation to your moot.

The Research Experience 2.4 The method of approaching research is discussed fully in Chapter 4. However, there are some basic things you should have in mind even before you start. [page 13] You should expect to spend a great amount of time undertaking legal research. If you are not good or efficient at that, you should seek some assistance from the outset. Law librarians, older students (preferably who have mooted before), a sympathetic member of faculty, or your team coach or academic adviser may all be able to assist. This book will give you some tips for research but can’t teach you comprehensively how to be a good researcher. Hopefully your engagement in the moot will act as a good prompt to get the assistance you need to enhance your research skills. This will include your knowledge of how to use electronic databases — and what databases are out there to use — and a comprehensive capacity to locate relevant law in the area of your moot. It is important to note that research does not stop at the point where you submit your written submissions, but will continue up until your final moot. The research component can be long and arduous. You may feel at times that you are not getting anywhere. In fact this often seems to be the experience of mooters. But do not despair, unless it is the case that you are not actually getting anywhere (see above in relation to getting help with your research skills) — there will come a time where you feel that your

understanding of the moot problem is ‘falling into place’. This should be the time that you start to see the same arguments reappearing in the articles and texts you are reading and you don’t seem to be discovering anything new. This should give you confidence. If you are starting to see academics and other commentators repeating the same arguments, then you can be reassured you now have a good idea of the ‘big picture’ in relation to your issues. We’ll look further at the issue of moot research below in Chapter 4.

Teamwork 2.5 All successful legal advocacy involves an ability to work with other people. One illustration to reinforce this point: as I noted in the paragraph above on ‘research’, many mooters at some point during the research phase of preparation feel they are not getting anywhere — perhaps they feel they are not identifying key issues, or they are not understanding a particular issue fully. The capacity to discuss this issue with a team member is invaluable. As I point out in Chapter 4, ongoing discussion and in fact argument about your submissions, as you begin to craft them, is critical. This is not simply because that old phrase ‘two heads are better than one’ is true, but also relates to the way most moots are structured. A moot usually requires a mooter to address at least two, but usually four, major submissions. Most teams, when preparing, usually assign one team member to tackle one in particular of those submissions, the second team member the second issue and so on. However, it is usually the case that the different submissions are at least to some extent interconnected. Not only, therefore, might you have two members working on the same problem and coming to different conclusions, but this might fundamentally undermine your entire moot — you simply cannot have your junior counsel rising to their feet and directly contradicting their senior! [page 14] And it may be the case that the structure of these interwoven issues is such that both researchers need to be aware of the intricacies of the other’s research to ensure they pick up any overlap which will have to be addressed in submissions. It might also be simply more efficient to exchange research findings — again, especially where there is an overlap of issues.

I have seen a number of moot teams who have divided research tasks among themselves, and worked on those research tasks individually, without updating each other on where they are at and what their findings have been. Then they have found, a day or two before a crucial deadline, that one team member is simply not as far through completing their research as they claimed to be, or has completely misconceived an issue or a problem. This has left the team scrabbling with very little time to ‘re-do’ the research. If they had picked up this problem earlier, that wayward researcher could have been assisted and re-directed much earlier on. Different people have different skill sets, different strengths and, of course, different weaknesses. If you happen to be on a team where every member is brilliant, hard-working, personally charming, and attractive, then lucky you! But most teams are not like this. The noble few willing to commit themselves to the hard work involved in a moot, and then work harder when they realise they had massively under-estimated the commitment, are, sadly, few. Hopefully your faculty or university has chosen wisely, though, and your teammates are as dedicated and hard working as you. Even so, you may find that there is a team member who, though a brilliant oralist, is not the most efficient researcher. Perhaps another team member is too brilliant — always getting sidetracked during research with the minutiae, and is therefore missing deadlines. Perhaps one of your team members has work commitments during part or all of the moot; perhaps another’s visa requirements mean they have a heavier workload than other team members; perhaps one has family issues. Whatever the reason, capacities in a team are never likely to be balanced and you will have to figure out some way of coping with this in a reasonable way. One of the characteristics of a good mooter, discussed briefly below, is humility. If you find yourself working with someone smarter than you, quicker than you at research, and a better oralist, you need to refrain from becoming resentful. Experience has shown that where, in a team of four mooters, three are dedicated and hard-working and one is not that team will suffer a great deal of stress: when only some of the team members are committed, this will usually lead to conflict and tension among team members. It may well be that there is someone on the team who really shouldn’t be there and the only solution is their exit from the team (see Chapter 8 for dealing with this scenario).

It is always preferable for teams to work out these sorts of issues among themselves rather than having their coach or academic adviser or another faculty member intervene. Of course, if the issues can’t be worked out, it is [page 15] wholly appropriate to seek that intervention. It is my advice to coaches and academic advisers in Chapter 8 that they make time and space for one-onone discussions with team members throughout the competition. It is my experience, however, that teams will protect even non-performing members from exposure, even when given the opportunity. Although I applaud this as an honourable personable attribute, I would also suggest that there comes a stage, after you have tried reasonably to resolve this sort of issue among team members, that it is appropriate to seek outside intervention. It is sometimes better to go into a competition with two or three good members, rather than four, where the fourth is a drag on the team. Having noted this, however, it is also important that where one or more team members are not as smart, or as quick, or as good researchers or oralists as you, you will also need to be generous in your recognition of this. Moot competition rules require teams to participate, and therefore you need to accommodate team members less brilliant or knowledgeable or less skilled than you. Figure out a way to maximise everyone’s involvement in and enjoyment of the moot experience. If you are in the unfortunate situation where you have to deal with a difficult situation such as this, there is actually an upside! It is probable that every law student will, during their job interviews after graduation (or before), face that typical question from a prospective employer (or their HR manager — HR people seem to love this sort of stuff): OK, let’s talk about team work. Tell me a time when you had to work in a team that had problems, and what you did to solve them?

So, if you do face difficulties in a team, given the very high pressure environment of moot competitions, I would suggest you ensure you are ‘consciously aware’ of what you are doing to try to resolve the issues, and take note of what you are doing to resolve your issues and why it is you are doing that. And if one method does not work, what are you going to try next?

Why did you decide to try that next? What was the outcome? What did this unpleasant experience teach you about teamwork? Be able to articulate it, whatever conclusion you come to. The previous paragraphs were addressed to team members who have to deal with a difficult, recalcitrant or non-performing team member. But I could equally give advice to the recalcitrant and non-performing team member. Perhaps you have joined a moot team without realising the workload. Perhaps you feel you are in out of your depth. Perhaps other things have come up in your life that mean you are finding it really difficult to cope with the expectations of other team members (perhaps it is even the case that other team members’ expectations are in fact unreasonable). There comes a time when you need to make a decision about whether you stay on a team or not. It may be that the other team members are happy to have you remain in the team even though, due to constraints outside the moot, you are contributing less than they are — you are still value-adding to the team. [page 16] However, if you realise you are not value-adding, and that this is leading to a growing resentment from other team members, perhaps the best decision is to get out early rather than allow team relationships to sour further. If you are not sure, there may come a time, nonetheless, that everyone needs to ‘lay their cards on the table’ and engage in a full and frank (and calm) discussion of everyone’s commitments. Difficult decisions as to whether a team member should stay or go will of course usually lead to guilt (I am letting the team down, even though I made a commitment!) to embarrassment and feeling of loss of face (Everyone knows I was on the team and they’re going to think I was not up to it if I drop off!). This is all true — and difficult to have to deal with. But, nonetheless, sometimes the decision just has to be made. I would point out that, in my experience, mooters are usually graceful enough (and grateful enough) to team members who will go early that they are willing to make excuses for them: if a team member stays, and relationships get worse, you can be sure that others will hear about it, if not during the moot, then after (not that I

would suggest or condone that — but I think anyone would understand it).

Hard Work, Relationships, Social Life and Work 2.6 This brings me to the next issue — the impact that participation in a moot competition can sometimes have on the rest of your life. If you prepare intensively, you will have less time with your friends. You will definitely have less time for socialising. If you prepare very intensively, you may lose friends, or even boyfriends or girlfriends (yes, it has happened). At a competition this year I was told by the academic adviser of another team that one of her team members had broken up with their fiancé in order to start dating a fellow team member. In at least one instance I am aware of two team members who met during a competition and went on to marry. Yes, mooting can be that intense. Therefore you should be aware that working together intensively for extended periods of time does seem to have the effect at times of, let us say, drawing people emotionally together — as well as sometimes tearing them apart. There is little advice I can give here, except to make you aware of it. At my university, for the more intensive questions we strongly suggest that students drop course load in order to participate in moots. Especially for the more competitive international moots, it would be very hard for students to undertake a full course load and participate effectively in their competition. As a consequence, some students take only three subjects in the semester when they are mooting (a normal course load is four subjects), some will take three or two, and some will only do the moot. This is made easier in my faculty because many of the moots may now be taken for course credit. Again, this is something that I can simply advise you on. The more time you spend on a moot, the better you will perform (and, in fact, the more [page 17] you will get out of the experience). Especially when you will be competing against other universities where the students are willing to make these sacrifices, you need to be aware that the less you do, the more on the back foot you will be. A reduced workload, or cutting back on the hours you work, should be things you discuss with your academic adviser — and also with

your team. A team where three students take only two other subjects, with a fourth student who takes a full course load and has a part-time job, is probably going to find that it is dysfunctional before too long. All team members need to be aware of their fellow team members’ commitments and the team as a whole needs to be satisfied that different patterns of involvement are ‘workable’ from very early on in the moot. Having provided all of these warnings, by far the majority of moot team experiences are positive. You may well find you make lifelong friends or even find a future wife or husband!

Time Management 2.7 You could probably guess by now that time management is going to be a crucial element for every team to get control of early on. Not only might different people have different schedules, making meeting together as a team difficult, but mooting schedules are usually also quite restricted. Failure to meet crucial deadlines in most instances will result in a penalty being imposed on your team. For instance, the Jessup rules state: Tardiness in submitting Memorial (rule 6.1 — penalty: 5 points for first day, 3 points per day thereafter. If both Memorials have not been submitted by the Disqualification Deadline, the Team will be withdrawn from the Competition.

Despite being informed, teams also tend not to anticipate how long tasks such as the final editing of memorials actually takes. If you are given warnings about time and work pressures by students who have previously done a moot, or by your academic adviser, take them seriously! Many times I have heard teams say, ‘This year we’ll have our memorials finished early!’, knowing they very probably won’t! Usually my university’s memorial submission occurs at a minute to the deadline. And this is a bad practice. Because if something happens with the computer system or the internet at the last minute, you could be in big trouble. Fatally late … The rules of the Vis and Vis East competition are even more brutal when it comes to tardiness in relation to submission of memoranda. The 2011–12 rules state: 31. Memoranda. Each team must submit a memorandum in support of the

claimant’s position to the Moot administration by e-mail by midnight, i.e. 24:00, Thursday, 8 December 2011. The deadline is measured at the team’s location. Each claimant memorandum will be sent to one of the other teams [page 18] by e-mail by 15 December 2011, or as soon after as is possible. Submission of the memorandum for claimant is an integral part of the registration procedure. Therefore, teams that fail to submit the memorandum by 8 December 2011 will be considered not to have completed registration for the Moot and will not be able to compete. I’ll deal with deadlines more below, especially in Chapter 3, but the simple message for now is: (1) be aware of your timeline and all its deadlines; and (2) build in as much ‘fat’ as possible, for those instances when you fall behind. Because believe me, you will. In addition to team deadlines, you should also adhere strictly to personal deadlines. One team member’s lateness in meeting a deadline can disrupt the whole team’s preparation, since you will find your research and writing tasks are often interconnected. If you are late or are going to be late with the completion of one of your tasks, it is essential you let other team members know as soon as possible. Staying quiet and hoping the issue is going to solve itself before the deadline rarely, if ever, works out.

Humility and Courage 2.8 Mooting can be daunting. It can be personally challenging. It can challenge your perceptions of yourself, your skills and your capacity. As I’ve noted above, working with a team can be challenging. You may be working with people on a moot team who are smarter than you, and you may get things wrong. You need to be able to take mistakes, errors and failings in your stride. An arrogant mooter is a bad mooter because they refuse to admit when they are wrong and need to improve — and all mooters can improve. It takes courage to be humble. You need to go into a moot competition and

be willing to have your legal reasoning skills challenged, the conclusions of your research questioned, the way you stand at the bar table criticised, the fact you flap your hands around like a bird when you moot criticised. The fact that your hair needs cutting or you need to do up an extra button on your blouse, or not wear that nail polish, or take that jewelry off … the fact you really should work harder, or really, this far into your law degree and your research skills are that sloppy?? Each thing you can do better will make you a better mooter, a better law student, and perhaps even in some cases a better person. In fact you should really look for the opportunity for ‘correction’ — or for suggestions of other, new, perhaps better ways of doing things. The minute those suggestions stop, you are as good as you are ever going to get, and that’s just a little sad (and you probably aren’t anyway). [page 19]

Your Coach, Academic Adviser, Faculty and University 2.9 Different universities and law faculties support their moot teams to a different level. There are a number of moot teams who have raised funds from sponsors to help them get to a moot, and who have little academic assistance. Unfortunately, if this is the case, you just have to make do. It seems it is becoming less the case that mooting is not supported, as there is a growing recognition of the importance of moot competitions, of the accolades that can accrue to a law school as a result of their successful participation, and of the value to student participants. You think you have it tough … If you are one of those teams who get little assistance from your faculty or university, consider the following: At an international competition in 2011, one competitor team from Vietnam travelled the length of their country and then across China by train to get to the competition venue in Hong Kong. Despite their university’s support of the team, they simply didn’t have the money to fly. When they got to Hong Kong, they could not afford the cost of accommodation so spent their first nights sleeping outside in a park (while

competing!) (until other teams found out and arranged accommodation for them). And they mooted in English. That’s a dedicated moot team. Similar stories can be told of other universities from the sub-continent or from Africa who compete in international competitions, who have very few facilities (certainly none of the flash moot courts that many Australian universities now have), barely any books on a given subject (some none at all on the subject of their moot), no, or intermittent, internet (if they have regular electricity) and which struggle intensively to fly their students half way around the world to a competition. Nothing I am suggesting you do in this book will require you to put in half the effort of those teams! Remember that it is you who are competing in a competition. Not only do the rules of most competitions considerably circumscribe what assistance moot coaches and academic advisers can give (more on that below) but you should really go into a moot wanting the end result to be yours. A moot team that is intensively coached on the law and arguments is really missing the point of participation, which is not just to win, but to engage in the competition. It is also a crucial fact that, if you are handed your submissions on a platter, you won’t really understand them, and you simply won’t do particularly well in the oral rounds of the competition anyway. To fully understand your arguments, you have to have lived with them for months, tested them intensively and you need to know as much as you can about that particular area of the law. If someone else has done this for you, you can’t possibly win. [page 20] In addition, excessive demands may be unfair on your academic adviser or coach. Usually academics who are involved in a faculty’s mooting program are not in any way reimbursed for their time — or, if they are, it is usually far below what they actually put into helping their teams. They are usually involved, simply, from a love of mooting. Coaching a high-intensity moot team can also be very rewarding to an academic adviser, because they see hard-working dedicated students really come to master a complex area of law. This is more the case than in a normal academic course, so it is naturally

disappointing when mooters do not seem willing to put in the work to achieve that level of mastery. In other words, be nice to your coach and faculty adviser!

Luck 2.10 Sometimes when you don’t win a moot it is quite simply not because you didn’t do better than the other side. Conversely, sometimes when you win a moot you probably didn’t deserve to! This can be one of the most shattering experiences for a mooter — losing a competition round when you know that the judges just simply didn’t know the law, and you couldn’t convince them. Or when you find yourself up against the two best teams in the competition to start with, or one team member gets sick on the wrong day, or whatever. Especially in short round competitions (for instance, where there is only one round and teams progress based on points), there is an element of luck needed if you are going to do well in a competition. Even in sophisticated international competitions, you may, for instance, draw judges who are not particularly knowledgeable in the area of the law, and who clearly haven’t read the problem carefully (maybe not at all). This situation is simply one where no team will be able to display their skill and preparation particularly well. And if you happen to get three benches like this in a row — well, you’re unlucky. There is nothing you can do about bad luck. I’ll give you some tips in the chapters below about how to prepare for some of the ‘bad luck situations’ you may encounter; but when you encounter them, they will still be disappointing. Sometimes it happens. At least be aware that it might. Life isn’t always fair, and it’s only a moot after all …

Competitiveness and Resilience 2.11 You are competing in what may be a high stakes competition. You are possibly competing against some of the best and brightest law students in the country — perhaps the world. They want to win and they’re working for just that. If you don’t really want to win, you won’t. There will be times during your moot preparation where you are tired, exhausted, and your fellow team members are in less than a good mood.

There will be times where your research does not seem to be getting anywhere, where it will seem better — much better — just to take the night or the weekend off and relax with those friends you have not seen for [page 21] three months. When this is the case, remind yourself that somewhere else — possibly in a variety of places — there are other teams that feel just the same. Some of them will take the weekend off. If you don’t and they do, you have just won yourself the tiniest of competitive edges. This is the attitude you must have. Writing from personal experience, I can relate a number of times when teams have thought they probably lost their last moot, and had one left to go, but, rather than slack off (‘We have no chance of winning anyway!’), they have worked through the evening before that last moot and have qualified to the next level of the competition. So, you must be resilient enough to weather the lows, and want the win enough to do the best you can to get it.

The Rules of the Competition 2.12 This is my final point in this chapter, but perhaps the most important one. Know the rules of your competition. And don’t break them. This is an imprecation I will repeat often throughout this book. You should read the rules of your competition carefully from the outset. Then you should re-read them again sometime into the competition to remind yourself of them. It is good practice to appoint a particular team member to be rule monitor — but also good practice for all team members to be aware of them. This is not only to protect you from penalties (see above, under time management, for instance) but possible disqualification. I know of no Australian university that has been disqualified for gross breaches of the rules, but teams are regularly penalised in competitions for minor infringements (particularly at the memorial stage). This will always leave a bad taste in your mouth, so it is better, where possible, to avoid it happening in the first place.

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3 C H A P T E R

Before the Moot: The Problem and Preparation Initial Stages — Deadlines and Timetable Initial Stages — The Rules Initial Stages — Planning Team Time Initial Stages — Moots Taken as Credit Initial Stages — Physical Resources Initial Stages — Preparatory Research The Problem is Released! The Structure of the Moot Problem Good Problems and Bad Problems Clarifications Conclusion

3.1 Most moot teams will have been selected prior to the release of the problem. This gives you time to prepare with your team so you can hit the ground running. This chapter suggests some early steps you can take to prepare for your moot, and gives you an idea of what to expect in a typical moot problem. These steps are relevant whether the problem has been released or not. Of course, if it has, there are other moot teams out there preparing already, so you had better get organised quickly. Detailed planning before a competition will not only make your preparation more efficient but will probably help reduce team member stress — especially at crucial deadlines such as, for instance, the date when your written submissions are due. [page 23]

Initial Stages — Deadlines and Timetable 3.2 One of the first things you can work out is the deadlines for your competition. Most moot competitions will have built-in deadlines. The main ones include: registration; the problem is released; submission of qualifying essay or other pre-competition requirement; payment of registration fee; submission of request for clarifications; submission of memorials; the oral rounds. Competitions will be structured differently and it is important you know how your competition is structured. For instance, the International Criminal Court (ICC) Trial competition in The Hague, and the World Human Rights Moot Court Competition (WHRMCC) in Africa both require teams to submit essays in a qualifying competition. In the ICC competition, the two highest ranked Australian teams qualify to compete; in the WHRMCC, two teams from each UN region are selected to progress to the international rounds in Africa.

In some competitions a team will be required to submit memorials for the appellant and respondent both on the same date. In other competitions, all teams submit the appellant submissions, then soon after receive the appellant submissions of one or more teams against whom they will moot. They must then prepare their respondent’s submissions — actually responding to the submissions of the opposing teams. This makes for a more ‘realistic’ competition, but provides extra stresses in relation to deadlines. If you are not assisted by an academic adviser or coach and it is up to your team to make all the administrative arrangements, you need also to keep in mind the dates for registration and payment of the competition fee as well (you’ll also have to consider making travel and accommodation arrangements). Once you have all the official competition deadlines, you need to construct your own team timeline. This will in large part depend on how you intend to go about preparation. If, for instance, each team member will be researching their own discrete areas of the competition problem, you will need to set a date for the whole memorial to be compiled. An advisable preliminary planning task is to compile individual team member’s schedules into a combined ‘availability schedule’. Presumably all team members will be enrolled in subjects during the competition, and will have other regular weekly commitments, such as work or other tasks, in addition to classes. One team member should be tasked with collecting each team member’s timetables and ‘overlaying’ them to determine when team [page 24] members have concurrent free time. You should plan to meet together as a team as much as possible during these ‘free’ times. I’ll discuss why further below. An example of a moot timetable during the research and writing period can be found below. This is premised on the release of a moot problem on 16 October and combined memorial submission on 9 January. Note that this is a schedule that happened to suit the team in question — each team’s schedule will be different depending on the personal schedules of team members, the structure of the moot, etc. (Note that some of the scheduled tasks in this

particular example will be discussed in the next chapter). Example — Moot preparation schedule DATE 12 September 14 September 14 September – 17 October 19 September 7 October 17–19 October 19 October 20–26 October 26 October 27 October – 2 November 2 November 3 November 11 November 4 November – 29 November 30 November 1–3 December 4–17 December 20 December 21–23 December

EVENT Release of Problem — read + preliminary research Split research areas and allocate Research + WRITE (33 days) Whiteboard session — half day Last date for request for clarifications Research + WRITE (3 days) MOOT Research + WRITE (7 days) MOOT Research + WRITE (7 days) MOOT Whiteboard session — all day Deadline for Registration Research + WRITE (26 days) MOOT 2x a week FIRST COMBINED SUBMISSIONS, Whiteboard session Group edit + dissection Study and exam week, edit + research Penultimate Group edit draft completed, MOOT MOOT for weakness, Group + individual edit [page 25]

DATE 24 December – 30 December 31 December 1 January 2 January 3 January 4 January 5 January 6 January 7 January 8 January 9 January 9 January 10–11 January 12–29 January

EVENT ‘BREAK’ (6 days) team members to read submissions for edits Penultimate Edit — Christmas changes (5 days) Penultimate Edit — Christmas changes Penultimate Edit — Christmas changes Penultimate Edit — Christmas changes Penultimate Edit — Christmas changes Memorial Final edit — footnotes, word count (5 days) Memorial Final edit — footnotes, word count Memorial Final edit — footnotes, word count Memorial Final edit — footnotes, word count Memorial Final edit — footnotes, word count WRITTEN SUBMISSIONS Due BREAK (2 days) Moot Practices (19 days)

It is also important to note that you will need to be flexible with your schedule. The above schedule was not followed by the team in question — in fact, the schedule changed on a number of occasions to adapt to developments in the team’s research or other problems that came up (such as one team member needing an operation for a broken arm!). In putting together your schedule, where possible speak to past team members who have competed in the same (or even another) competition before you. Such input can be invaluable — and you are more prone to believe it if it comes from someone with experience. But, even where you get such advice, don’t necessarily be adverse to changing the way your team manages their deadlines — each team is different. The important thing is to have a schedule even if it changes continually. It is the best way of monitoring your progress and ensuring you don’t miss allimportant key deadlines.

Initial stages — past problems and ‘templating’ 3.3 Another excellent pre-research task is to look at some past problems from the competition you are about to compete in. Many of these past problems will be available on the web (I provide web links in Appendix 1). This is an invaluable way to ‘acclimatise’ yourself to the competition. You [page 26] will be able to gauge how complex the fact scenario of your moot is likely to be, how many legal research areas you are likely to have to deal with, and perhaps get an idea about how best to structure your written submissions. Where possible, also look at some past written submissions (or memorials). Again, this will give you an idea of the amount of work you will be required to do and the minimum quality of the work you will have to produce. In addition to getting hold of some of the past memorials from your own universities, some competitions place winning memorials on their website (see Appendix 1 for web links). You will notice that the written submissions of different competitions have different distinctive styles. If you are able to get hold of examples of ‘winning’ memorials, you should of course seek as much as possible to emulate their style. It is sometimes said that some competitions have a particular style of their own (for instance, the ‘Jessup style’) and to some extent this appears to be true, but a comparison of award winning memorials — even in the Jessup competition — shows a variation from year-to-year. Whatever style you chose to go with, one very important task that you will have to agree upon prior to commencing your research and writing is exactly what style you do wish to use. Since it is probable that each team member will be working on different parts of the written submissions on their own, it is important to agree on the style and use it from the beginning. If you don’t, you will literally have to spend dozens of hours later on editing your written submissions to ensure consistency throughout. Therefore, consider the following (and I revisit each of these elements in the next chapter): How many levels of heading? (Be aware the rules may have something to

say about this and the following elements of the layout.) What font, in what size? What character spacing and paragraph spacing? What referencing system is to be used? (Some moots require a certain referencing system to be adopted, some do not.) What size paper? What format is the final file to be saved in? It is a useful exercise to construct a template document with each of these elements built in using the functions in your word processing program, and then ensuring that each team member uses this as they write, rather than assigning styles later on. You should also be aware that using different computers will sometimes result in format changes when documents are cut and pasted from one to the other, or are shared across different desktops of laptops. This seems especially to be the case when some team members are using Macs and [page 27] others are using windows-based computers (possibly also with different operating systems). Be careful that passing documents back and forth among different computers does not corrupt your template, and as far as possible work on the same type of computer using the same operating system and the same word processor version.

Initial Stages — The Rules 3.4 As I’ve said before know the rules! Many competitions have quite detailed requirements in relation to the style and content of written submissions. ALL competitions have rules relating to word count and to length — some delineating length by word count, and some by page length. Because the rules are usually so detailed, it is impossible to get an advantage by, for instance, changing the font type and size to fit more words on the page. You’ll just have to operate within the rules you are given. Again, every team member should have a careful read of the rules before the competition starts and review them, as appropriate, as you continue

preparations. So, for instance, a very careful reading of the rules relating to format and content of your written submissions would be appropriate when you are establishing your template, and a check would be appropriate again when putting together your master version, and certainly a compliance check before submission.

Initial Stages — Planning Team Time 3.5 As mentioned in Chapter 1, it is absolutely essential that members of a mooting team work together on the preparation of their moot. Nothing undermines the persuasiveness of a moot more than inconsistent submissions coming from members of the same team or a team member’s ignorance of his or her partner’s submissions. To be persuasive, the opening address made by the senior counsel, the summing up by the junior counsel, and the reply (if any) made by senior counsel, will need to be based on a clear understanding of all the arguments put by the team. Similarly, each and every argument should be consistent with each other and not be contradictory. A mooter should be able to answer a judge’s questions in light of their whole case submissions. Since a submission of junior counsel may ‘overlap’ with that of senior counsel, junior counsel needs to thoroughly understand senior counsel’s submissions and vice versa. The sheer complexity of arguments and the subtlety of argument of a team will therefore be ‘tighter’ the more time a team is able to spend together. [page 28]

Initial Stages — Moots Taken as Credit 3.6 If you are lucky enough to be able to take your moot for course credit, ensure you also know the requirements in relation to assessment. Often there will be some capacity for flexibility with assessment — ie when it is taken, or what exactly will be assessed. If this scope exists, make sure you have a discussion with your academic adviser early. At this point it may also be appropriate to have a discussion about what measures can be taken to facilitate you maximising the time you have for

moot preparation work. For instance, at my university, if it is appropriate, we will allow students to take deferred exams. Similarly, if a crucial deadline falls at the time of a course assessment, course coordinators will usually be flexible in allowing some extension for deadlines for work to be handed in. It is worth clarifying very clearly beforehand (even before you accept a position on a moot team) what the requirements for a moot taken as course credit will be.

Initial Stages — Physical Resources 3.7 Happy is the moot team that is strongly supported by their faculty. As I noted above, many of you will have to struggle with little support from your institutions, but, happily, more and more universities seem to be allocating resources to moot competitions. Thankfully, my own institution seems to be among the most generous in resource allocation. Agitate as best you can for some of these things at least. But even if they are not provided by your university, you will need to access them in some way or another. Space: That is, a room if you can get it. As noted above, you will need to meet together as a team as much as you can. If you cannot get a dedicated room, you will need to book a room regularly in your library, or find some other way to coordinate group meetings. (Perhaps your library can make a regular booking for you for at least one weekly team meeting.) Also maximise the amount of space you can get. A whiteboard in your meeting room will also be useful. If your institution is able to provide you with after hours (or at least late) access to a workspace, this will also be useful. You will be spending some all-nighters, and it will be better to be spending them as a team. If a room is not available, consider how you are going to share resources such as library books. If more than one of you needs to access one of them on any day and you have it at home, this is going to be inconvenient. Computer resources: These days most uni students have laptops, or desktops at home at the very least. You will, of course, need access to computers for preparing your written submissions. You may also consider using an app such as Dropbox for storage for your electronic material and for the master copies of your written submissions, so anyone can access them anywhere. Library resources: This is going to be one of — if not the — key

resources you will need. Not only do you need access to basic (and perhaps [page 29] advanced) texts in your area, you will also need access to electronic legal databases. Find out what you will need for your area of law, what your library has, and how you might supplement those resources. See also whether you can come to some deal with the library for the extended loan of any basic text you will need to refer to throughout your research period. Again, it will be inconvenient to have to renew texts repeatedly — especially if no one else is likely to be using them because they are in specialised area of law. Academic advice: Remember I said ‘read the rules’? Most competitions — some more than others — have very tight rules about what assistance can be given to a team (see Chapter 8 below for a more detailed discussion). The work in a moot is meant to be the team’s own. Having said that, maximise any assistance you can within the rules! If need be, go outside your institution for help if you do not have the specialised human resources to assist you in your own university. If you have no help, do not despair. Exhaustive and intense research should get you up to the level you need to be competitive in a moot. As an example, I would mention that I have guided a number of moot teams in areas of law that were outside of my expertise — indeed out of the students’ expertise — and they have still done very well: in some instances winning moots when they have not studied the substantive area of law in which the moot is being conducted. So you don’t need academic advisers, even if they are good to have. As a final note, I tell my student moot team members that by the time of the oral rounds, they should, through their research, know much more about the area of law they will be mooting than I know. You know, the old student surpassing the teacher thing. Mail resources: A small thing, but it may be crucial. Some competitions require you to mail multiple hard (paper) copies of your written submissions to the moot organisers. If you are mailing ‘close to the wire’, make sure you have some receipt that shows that the submissions were actually mailed in time. If you are mailing to an overseas competition, make sure you find out well ahead of time what the time to delivery will be. It may be that you need

to have your written memorials done ahead of the official deadline in order to mail (or courier) them in time for them to arrive by the deadline. A place to practice your moots: Again, having space is particularly useful. You don’t need a modern fully furnished moot court (although of course that would be nice) but simply a space for mooters and judges. Some facilities provided for actual competitions are themselves quite primitive, so if you are a university blessed with modern moot courts, it’s probably an idea to find out what your actual moot court rooms are like and practice in similar conditions. If you are going to face a cramped classroom with your opposition 30 centimeters away from your gesticulating left hand in the real competition, you had better practice not hitting them in the nose (I joke not, it nearly happened to a team member of mine three years ago). Practice moot judges: Ahh! A blessing if you can find a plentiful bevy of qualified specialists in the area of law of your moot, who not only [page 30] have the time, but also the inclination to put themselves at your service to judge multiple moots. In other words, you won’t. You will be lucky to find some faculty members in non-related areas of law who will be willing to judge a few moots and to give you a little feedback at the end. It won’t be specific, more in the nature of ‘I didn’t really find your second argument convincing’ or ‘The way you waved your arms about was a little distracting’ or ‘I couldn’t hear a word you said’ (one of my teams once had an actual judge — judging by electronic link — who said that in feedback in an actual moot! Not a word had been said during the moot). However, it is quite possible (even probable) that the actual judges in your moot competition will be of a similar ilk to these. That is, they are willing to sacrifice their time but don’t really know the law. But they should be able to pick up logical inconsistencies and weak arguments, and stylistic problems. So, if you need to start to cajole and convince well ahead of when you start oral practice, do so. And anyone will do if you can’t find an expert.

Initial Stages — Preparatory Research

3.8 Even before the problem is released you can engage in some preliminary research. You know what the area of law is (torts, family law, international law, etc). As I mentioned in the previous section above, many of your judges will know at least a little, but not a lot, about the area of law of the problem. It is more than probable, then, that you will be asked some basic questions relating to the broad area of law represented by the moot. If you can’t answer basic questions, you’ll have lost before you’ve even started in the oral rounds. All good mooters, therefore, will require a good and thorough understanding of torts law, or international law, or whatever field of law you will be mooting in. Even before the problem is released, you have the capacity to dig out your notes from semester one’s torts course and brush up. Or read the last edition of Brownlie.

The Problem is Released! 3.9 Most moots take a similar form. You will be provided with a ‘problem’. It will typically be between three to maybe five pages in length (for domestic moots) and up to between 30 to 40 pages for international moots (for instance, in 2012 the Jessup problem ran to 31 pages). A competition such as the Willem C Vis International Commercial Arbitration competition, which is usually based around the correspondence between two parties, was 51 pages in 2012. The moot problem will (usually) be issued up to four or five months prior to the competition. Sometimes a competition problem will be late, in that it is expected by a certain date but is delayed. This is more usual in domestic competitions, but even happens irregularly with Jessup. Don’t worry if it is — at least all the teams are in the same position. [page 31] Hopefully your faculty has selected the team prior to the problem being released. If so, there are a number of things you should do in order to prepare yourself to ‘hit the ground running’ when the problem is actually released (see earlier for pre-moot planning).

The Structure of the Moot Problem 3.10 No matter how long a problem is, it will contain more than one issue that mooters will be required to address. Sometimes the issues are stated clearly in the moot problem materials, but sometimes mooters will be expected to identify what the issues are without specific guidance. An example of a moot problem that very specifically sets out the questions to be addressed is the Jessup competition. The 2012 problem states the questions to be answered as follows. This question involved a government (of ‘Aprophe’) who had taken power by a military coup, and in order to preserve its power had blown up part of a world heritage site. The other state (‘Rantania’) involved had been the main partner in a regional organisation (like NATO) in trying to topple the coup government. There was another issue regarding court proceedings brought by the nationals of one of the states against the other in relation to alleged forced labour said to have occurred in a previous conflict in the 1960s: 48. Aprophe requests the Court to adjudge and declare that: (a) the Court may exercise jurisdiction over all claims in this case, since the Andler government is the rightful government the Republic of Aprophe; (b) Rantania is responsible for the illegal use of force against Aprophe in the context of Operation Uniting for Democracy; (c) since the exercise of jurisdiction by Rantanian courts in the case of Turbando, et al., v. The Republic of Aprophe violated international law, Rantania may not permit its officials to execute the judgment in that case; and (d) Aprophe’s destruction of a building of the Mai-Tocao Temple did not violate international law. 49. Rantania requests the Court to adjudge and declare that: (a) the Court is without jurisdiction over the Applicant’s claims, since the Andler regime and its representatives cannot appear before this court in the name of the Republic of Aprophe; (b) the use of force against Aprophe in the context of Operation Uniting for Democracy is not attributable to Rantania, and in any event, that use of force was not illegal; (c) since the exercise of jurisdiction by Rantanian courts in the case of Turbando, et al., v. The Republic of Aprophe was consistent with international law, Rantanian officials may execute the judgment in that case; and (d) Aprophe violated international law by destroying a building of the Temple of Mai-Tocao.

In this format, it is quite clear what each side is required to argue. [page 32]

Another example of the presentation of specific question being posed in a moot problem can be seen in the 2011 LexisNexis Sir Harry Gibbs Moot Competition. This case involved the imposition of a state levy on offshore gas exploration and distribution. This is a little different, because the actual submissions for each side are not presented. Instead the ‘questions posed for the court’ are clearly outlined in the moot problem: Under rule 27.08 of the High Court Rules 2004 the parties have agreed a special case containing the facts and matters stated above. The special case states the following questions of law for the opinion of the Full Court: Q1: On the facts stated above, are any or all of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) or the regulations or administrative decisions made thereunder invalid by reason of section 92 of the Constitution? Q2: On the facts stated above, are any or all of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) or the regulations or administrative decisions made thereunder invalid by reason of section 90 of the Constitution?

As you can see, the issues you need to address are made very clear in these sorts of problem. Another way in which a problem may be put can be illustrated by the QUT Shine torts moot problem in 2011. That problem involved an incident where the (possibly) inebriated driver (called Gertrude) of a van containing party revelers drove off a bridge. A passenger in the van (called James) was ‘catastrophically injured’ and sued Gertrude. At trial, the trial judge found: 1. That Gertrude owed James a duty of care and was negligent in her actions; 2. Damages were awarded to James. James was found to be 70% contributory negligent. Gertrude appeals Judge Rupert’s finding on liability. James cross-appeals, challenging Judge Rupert’s finding of contributory negligence.

Here the issues are identified more broadly than in the previous Jessup example. As you can also see, the two issues can also be further divided into four: 1. Whether Gertrude owed James a duty of care; 2. Whether Gertrude was negligent; 3. Whether it was appropriate to find that James’s damages should be reduced as a result of any contributory negligence; and if yes 4. Whether a quanta of 70% is an appropriate reduction in the circumstances. But it is up to the mooter to tease out a little more the specific issues and submissions that should be put to the court. We’ll return to examples in

Chapter 5. [page 33] Other moot problems leave it to you to figure out what the major issues are and subsequently to craft your submissions around them. For instance, the D M Harish International Law Moot, in India, concluded its 2012 seven page compromis with: … [t]he Governments of Darshini and Amiti decided to refer their differences to the International Court of Justice, based on the facts set out in this Compromis and to abide by its orders.

This left it up to the mooters to identify the relevant questions to be argued. These types of moots require mooters to take great care in identifying the issues — a wrong choice can make for a difficult moot. If you find yourself in this situation, then this is where you will want that teamwork to kick in. Four minds are less likely to misidentify the issues than is one. Be aware that moot problems are not real life problems. They are usually crafted to prompt mooters to moot a particular set of issues. Real life proceedings can involve the requirement of resolving five or six or more issues. Moot problems will rarely challenge you to address more than four issues. Therefore, since a problem has been deliberately crafted to require that, if you are not sure whether something is a live issue, it probably isn’t. But be as sure as possible about that! If you aren’t sure, it’s better to actually address the issue in your research in the hope that you will clarify this issue as you proceed to write your memorials (we’ll look at this issue again in Chapters 4 and 5).

Good Problems and Bad Problems 3.11 One of the first things you should be aware of is that not all moot problems are well written or well constructed. Most are — but not all. Some of the problems with moot problems include: Problem 1: The problem is based too closely on a precedent case. This is where the fact scenario very closely matches the case which is given as the

main precedent case to which you have been referred. Or perhaps it does not necessarily match the precedent case which you have been specifically referred, but there is a case out there which is directly on point and identical or close to identical in the facts. This means that it is going to be very easy to argue one side of the problem, but difficult, if not impossible, to argue the other. You may have a big problem if the judgment in question is from a superior court, because it is going to be very hard to distinguish it. If this is the case, you can only hope that there are dissenting judgments that you can rely upon, and argue that the dissenting judgments are to be preferred to the majority — either because the majority (respectfully, of course!) got it wrong, or circumstances have changed, or perhaps the majority were correct in law but the dissenters are to be preferred on public policy [page 34] grounds. Remember, even the High Court can chose not to follow its previous judgments. Problem 2: A judgment is handed down during the course of the competition that changes or decides the law. This does happen. This is not necessarily an indication that a problem has been poorly constructed — it may just be unlucky (or lucky, depending on what side you are mooting for!). This occurred as recently as 2012 when the International Court of Justice (ICJ) handed down its judgment in the case of Italy v Germany on 3 February — in the middle of the Australian national rounds of the Jessup competition. The judgment addressed conclusively one of the ‘live’ issues in the moot. You should consider the techniques outlined in Problem 1 for dealing with this situation. This is also an excellent opportunity to impress the judges with your diligent research skills. The judgment in the ICJ decision mentioned above was actually broadcast live on the evening before the quarter final rounds. A diligent team would have made sure they were across all of the issues, had read the judgment, and was able to explain to the judges the effect of the decision — even if it was against them. Some tactics for dealing with this issue are examined in more detail in Chapter 5. Problem 3: The fact scenario in the problem is ‘lopsided’. That is, it

either clearly favors the applicant/appellant or it clearly favors the respondent. This means you will find it easy to prepare one side, but almost impossible to prepare a good case for the other. Usually, if this happens, it is only in relation to one of the issues in the problem. If it has happened with more than one issue (a particularly poorly crafted problem), you will just have to manage as best you can. If you are mooting both the applicant and the respondent side, at least you can be comforted with the fact that all teams will be in the same position of having to moot a weak side at least once. Even with a well-designed problem you will probably find that you have stronger arguments for some of your submissions than for others. This is natural in most moots — and should not be a matter that concerns you. Given the way that most moot problems are structured, you will not simply be able to avoid making these arguments completely. Instead, how well you deal with the weak arguments that you nonetheless have to make can be the thing that wins you a moot. There is more on this in Chapters 4 and 5.

Clarifications 3.12 Many competitions allow you to seek clarifications of issues in the problem. Provision of this capacity is a way for organisers to correct unintended errors, but also to provide for omissions that were not apparent at the time the problem was crafted, or to provide additional information that will assist teams in their preparation. Note that only a small number of the clarifications that are sought are ever answered. Usually ambiguity in relation to a number of issues is deliberately built in to a problem. [page 35] Where there are ambiguities, you should be suspicious that these ambiguities are deliberate, and that the moot problem setters want you to argue one way or another to resolve the issues for the court.

Conclusion 3.13 By this stage in our preparation you should have done everything

necessary to prepare yourself for the research stage of the competition. Actually, the ‘research phase’ (as I mentioned above) does not finish until the mootfinishes. But the intensive preparation phase up until your written submissions (or ‘memorials’ as they are often called) will start the day you get the problem and finish the day you submit your written arguments. This phase will be discussed in the next chapter.

[page 36]

4 C H A P T E R

Written Submissions — The Memorials Research — Broad Issues Conceptualising the Case Written Submissions — Particular Issues Some Stylistic Issues The Lead-up to Submission 4.1 Generally, when students aspire to a place on a moot team, it is in order to partake in the actual oral presentations. Rare is the student who wants to be on a moot team in order solely to be a researcher and a writer of the team’s written submissions — or in American parlance (but now common in Australia and worldwide), the ‘memorials’. Although the research and writing part of the moot can be grueling, it is nonetheless crucially important. It is important not only because the fruits of your research are going to be the basis for your oral submissions, but also because most competitions are structured so that written submissions will

count towards the marks you receive towards each particular round of the competition. If, therefore, your opponents have ‘won’ the memorial points, then, even though you win the oral-round points, if it is a close moot you may well lose that round once your memorial scores are taken into account. Getting the memorials ‘right’ is therefore crucial. [page 37]

Research — Broad Issues 4.2 The first thing to remember, from the very outset, as you begin to undertake your research is that moots involve ‘legal’ persuasion. A ‘debater’ may win a debate by skilful use of language despite having little background knowledge of the topic debated. Legal advocacy is fundamentally different. The legal advocate must have mastery of a body of knowledge that relates to the problem being considered. This is because the mooter, like an advocate in court, will be questioned (sometimes intensively) by their judge/s. In the same way that a barrister must be across their brief, so too must a mooter be across the facts of their moot problem. You will be questioned on your understanding of the law. You will be grilled on your knowledge of the facts of the case. You probably will also have to display an understanding of the public policy implications of any submission you are urging on the court. Unless you have engaged in in-depth research and have a thorough understanding of the law relating to your moot, you cannot do well. You must therefore aspire to read as much as possible in relation to your area of law. You must find all the major text books that refer to your area. You must read cases in full. You must track down every article on your specific areas of law. Most of all, you must think about what you are reading. You must aspire to become an expert in your particular area of law. You must aspire to be in a position, at the time you submit your written memorials, to know more than the memorial judges who will be reading them.

Understand the Facts

4.3 First, you must be thoroughly conversant with the facts of your problem. A judge who is not conversant with the area of law involved in the problem is more likely to ask questions relating to the facts. If you can’t demonstrate that you understand what happened in your case, you are showing a very basic failure to prepare. Even judges who are highly conversant in the law of your moot, who direct more questions towards legal issues involved in your moot, will look dimly on your failure to have memorised the facts of your case. All legal argument is ‘fact reliant’. A precedent should be followed because the facts in your present case are identical to, or similar enough to, the facts in the precedent case you are relying on. If you display an ignorance of the facts in your moot case, you will not be able to argue that the precedent from the precedent case applies. And this leads to the second set of facts with which you must be conversant — the facts of each of your previous cases. Many law students who engage in only basic research to solve legal problems will use a legal rule from a precedent case without properly understanding what the facts were in that precedent case. Of course, if the facts are sufficiently different to the facts in the case to which the rule is being applied, then it is quite possible that the precedent case itself can be [page 38] distinguished. If you are not able to tell a judge what the facts are in both your case, and the precedent cases upon which you rely, how will you be able to argue that the rule from the precedent case applies? Quite simply, you won’t be able to. Importantly, you must not only be ‘right’ in your application of the law, but you must be able to explain to a judge why you are right. In a court, unless you are working with an obscure precedent case, this may be less important. Presumably the judge knows the applicable law and is not going to question counsel on existing and established precedent. In a moot, however, you are not simply being tested on your knowledge of the law, but also your understanding of it. I suggest to my mooters that they re-read their problem every day. That is, every single day of their research and writing (then, even after the memorials are finished and submitted, every day upon which they are preparing for the

oral rounds of the moot). You may find you are surprised that a re-reading of the problem — even for the twentieth or thirtieth time, will prompt you to think of a new argument, or provide you with a new supporting fact for one of your submissions that you had not thought of before. Judges will often ask for guidance on finding a particular fact in the moot problem papers — sometimes they want to read exactly what the problem says themselves. It is therefore crucial that you have an excellent knowledge of the moot ‘papers’ — the problem, as well as your own submissions, and any other documentation relevant to the moot. It is a good practice not only to know your facts inside out, but also to know exactly where, in your problem, they are to be found. Thus, you should not only memorise the facts, but also the paragraph number and or page number where those facts are to be located. You need also to be able to articulate why particular facts are important. Remember that a moot problem is constructed. It is not like a real case where the facts are ‘messy’ and relevant facts might need to be extracted from a mire of irrelevant ones. Someone has written your moot problem, deliberately constructing a scenario that raises a number of particular issues. The facts provided to you, therefore, are intended deliberately to support (or undermine) specific legal arguments. It would be unusual that moot problem writers will add to a moot scenario many irrelevant facts. Therefore, as you read your problem you should ask yourself why that particular fact has been included in the problem. What does it add to the problem? Why is it relevant? You should also be able to articulate to your judges the relevance of each fact in your moot problem. When drafting your memorials, ensure that you make the link between the relevant facts and the legal issues you are addressing. Again, remember that you are not writing an abstract essay. In the Jessup example given in the previous chapter, the first two submissions that the applicant was required to make were stated as:

[page 39] 1. 2.

The Court may exercise jurisdiction over all claims in this case, since the Andler government is the rightful government of the Republic of Aprophe; Rantania is responsible for the illegal use of force against Aprophe in the context of Operation Uniting for Democracy …

The first issue concerned a government (the Andler government) that had come to power as the result of a military coup. The second issue related to whether a state that had participated in an invasion (of the applicant) under the auspices of a regional organisation (think NATO) was responsible for the acts of the military, or whether responsibility should be assigned to the international organisation. To address the first issue, you would have to state the legal rules relating to governmental legitimacy, and more particularly the rules relating to the legitimacy of governments that take power through coups. In the second, you would have to address issues regarding the responsibility of international organisations for their actions under international laws, and the attribution of acts to states operating as part of international organisations. However, you would then have to address the particular facts of the case — and this is really half the job you have to do. You have first identified the principles that govern the legitimacy of governments, and you then must justify that the Andler government is the legitimate government of Aprophe — and explain why (and which of the) the facts support this conclusion. In the second submission, you will have to examine the circumstances relating to the military intervention in Aprophe to justify your claim that that particular action can be attributed to the state of Rantania. The link must be made clear to your readers — the memorial judges. Know the facts of your moot problem inside out. Know them before you start drafting your memorials, because the factual matrix of the problem will provide the skeleton of the legal issues you are required to moot. Test your fellow team members on their knowledge of the facts — and have them test you.

A useful task to undertake early on is also to draw up a timeline of what happened and when in your moot problem. Then seek to memorise it. This will help you orient yourself in relation to the scenario you are dealing with, but it may also be helpful in revealing facts crucial to the law relating to your case.

Submissions — Not Abstract Research 4.4 When you start your research you will have identified what you consider to be the main legal issues in the moot. You will then begin your research into the law relating to these issues. As noted above, there is a huge [page 40] amount of work involved in this research. But from the outset, you should not be engaging in research to answer an abstract legal problem, but in order to put a case for your client. For instance, the legal issues to be determined in the constitutional law problem we encountered in Chapter 3 were stated to be as follows: Under rule 27.08 of the High Court Rules 2004 the parties have agreed a special case containing the facts and matters stated above. The special case states the following questions of law for the opinion of the Full Court: Q1:

Q2:

On the facts stated above, are any or all of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) or the regulations or administrative decisions made thereunder invalid by reason of section 92 of the Constitution? On the facts stated above, are any or all of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) or the regulations or administrative decisions made thereunder invalid by reason of section 90 of the Constitution?

When you begin you should not approach your research as an exercise in determining what you consider to be the ‘right’ answer to each of these questions. There is no right answer — there are submissions for each side. If your legal issues are identified in this way, rewrite them in propositional form. So: For the Appellant: 1.

2.

On the facts stated above, all of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) and the regulations and the administrative decisions made thereunder are invalid by reason of section 92 of the Constitution. All of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act

2011 (SA) and the regulations and administrative decisions made thereunder are invalid by reason of section 90 of the Constitution. For the Respondent: 3.

4.

All of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) and the regulations and the administrative decisions made thereunder are not invalid by reason of section 92 of the Constitution. All of the provisions of the Gas Supply Act 2000 (SA), the Offshore Waters Gas Supply Act 2011 (SA) and the regulations and administrative decisions made thereunder are not invalid by reason of section 90 of the Constitution.

Your research should then proceed on the basis that you are seeking legal precedent that assists you in supporting these propositions. It will be very rare that an issue in a moot problem may be resolved in a black and white way — each issue will have some ambiguity attached to it. It is your job as an advocate to make a case for your client and convince the court that your submissions are to be preferred to those of your opponents. [page 41] This means that, for each side, you may be relying on different precedent cases to support your case. If judgment A supports the appellant’s case, and judgment B supports the respondent’s case, the appellant will rely upon case A (and tell the judges why it should be relied upon) and will distinguish case B (and give a good reason why it should be distinguished). The respondent will do the opposite — relying on B and distinguishing A. Almost all moot competitions require a team to moot both sides of a moot problem. Therefore you will have to craft arguments for both appellant and respondent. Because this is the case, you should not become ‘tied’ to any particular argument or side. This is a trap into which many mooters fall. It is especially the case because most teams prepare one side first (usually the appellant) and, after convincing themselves that the arguments they have crafted for the appellant are strong, then find it difficult to convince themselves, as respondent, that the wonderful arguments they have finished for the appellant are … well, wrong! But this is precisely what you have to do. Although your memorials must be written as submissions — making a strong case for your client — you cannot simply ignore strong points against you. You must do your best to distinguish any authority that is against you.

Again, remember that in any moot you will have some submissions that are stronger for one side and some that are stronger for the other — you will not be able to win every point for each side.

Who Researches What? 4.5 Most moot problems are constructed to be mooted by two persons. For instance, you may have a problem where there are four issues to be determined and you would split those issues between two mooters, the first mooter presenting on the first and second submissions, and the second mooter on the third and fourth. Or you may have a problem that has three issues — one larger than the other two. Here the first mooter may take the first main issue and the second mooter the smaller two. Research tasks should initially be split according to a similar principle. If you have four issues on a four person team, you would usually assign each person one issue to deal with. Usually most teams will undertake their research ‘side-by-side’. That is, usually dealing with and completing the appellant first before beginning work on the respondent. (Note that in some competitions this will be necessary because you will be actually responding to the appellant or applicant memorial of one or more of your opponents.) If you have an odd-numbered team and an even number of issues, attempt to break one of the more complex issues down into sub-issues. Either that, or have a floating researcher who can assist other team members in their research tasks as they progress. Some teams prepare by rotating research tasks. One team member will work on a problem for a week, then hand it to the next team member who [page 42] will expand upon the work of the first team member, before transferring the task to a third member in the next week. Whichever method you chose, you must make sure that each team member is across all the issues in a relatively comprehensive way before you complete your memorials. This is not only necessary because mooters will

need to have that knowledge for the oral rounds of the competition, but also because it is a method that will (hopefully) identify any gaps in your preparation. The old saying is that two heads are better than one — and it is a saying that certainly holds true for mooting. You do not want to find, only days before you are meant to submit a memorial, that one of your team members has gone off on an obscure tangent and that their portion of the memorials needs to be completely re-written. Oversight of each other’s work is therefore crucial. You may also find that an area of law that you are researching ‘clicks’ whereas another does not. Considering exchanging tasks with another team member if you are finding that an issue remains obscure to you after a week or so of initial research: it is possible that another team member will understand your issue and you will better understand the issue they are currently working on. Having said that it is important that all team members are across all areas of the research by the time of memorial submission, most teams nonetheless find that, due to the intensity of the research stage of a competition and the amount of material that you will have to cover to get a comprehensive understanding of the issues, that one team member will concentrate on one issue throughout the research and writing stage. This way, although every team member will have a good general idea of all the issues in the moot, each team member will also have some expertise in at least one of the main issues.

Write as You Research 4.6 There is a tendency (not only among mooters, but law students generally, and even some academics) to postpone writing until after they fully comprehend the issue they are researching. This should not be your preferred way of working. Not only is it likely that you may feel that you have never fully mastered an issue (there is always one more article to read) but the exercise of writing will itself assist you to understand your issue — so you should try to start writing your submissions as early in the research stage as possible. Not only should this help you clarify your reasoning, but it is also crucial as a time management tool. It does not matter that whatever you have on the page is ‘scrappy’ — you will be undertaking multiple edits of the material

anyway. The simple fact is, you do not have enough time to delay your writing. It is inevitable that you will be working up to the last moment before you submit your memorials, so you need to start writing as soon as you possibly can. [page 43]

Footnote Fully as You Write! 4.7 You should also footnote fully as you write — and do so from the outset. You will be undertaking a huge amount of research and you will not be able to keep track of your authorities if you do not carefully note them as you write. Do not think that you can incorporate authority and then go back and find it ‘later’. You may in fact be able to, but it is likely you may have to spend hours trawling through dozens of articles asking yourself ‘where exactly did I read that?!’ Also, avoid the use of ibid and op cit in your footnotes during the writing stage. Early on, footnotes four and five might actually refer to the same book or article, but it may well be that you insert two footnotes in between these two, so your old footnote five becomes footnote seven. Your ibid will now be inaccurate. Correcting footnotes to the appropriate and consistent referencing form should be one of the very last things you do in preparing your document for submission. So, early on, the following is not only acceptable but necessary: 5. Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 534. 6. Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 534. This will later, in the very final stages of editing (if there are no insertions of new footnotes after footnote five), turn into: 5. 6.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 534. Ibid.

Conceptualising the Case 4.8 When my moot teams have begun their initial research and have started to get an idea of what the issues are and what law is relevant to their moot, I

encourage them to try to conceptualise an overall ‘theme’ for the case. If you can capture a theme for the case, this will allow you, in the oral rounds, to better paint a picture to judges of what has happened in the case and allow you to advocate for your client as a real entity. The process culminates in the development of a core theory, a ‘conceptualisation of the case’.1 This is your theory of exactly what happened in your fact scenario, its legal significance and why your submissions should be accepted by the moot court. You may have begun your research with a very general view about why your client should win, but, as you explore your case and complete your research, you will need to develop a tightly argued, factually and legally coherent account of the case. You will need to identify the core issues surrounding the central legal propositions and the essential facts that support (or challenge) your client’s case. [page 44] If these are woven together into a persuasive chain of argument that gives a compelling account of how the court should respond, then you have moved closer to your goal of persuading the court to accept your submissions. Remember, in appellate advocacy, the major concern will be the identification of the central legal issues. This process will involve the mass of material collected that is relevant to the topic being placed into a logical order and structure. Obviously, you will be looking for binding statutes and precedents that set out the elements which must be proven and the tests that the courts have developed to prove the presence of these elements. You may have a relevant statute or the ratio from a High Court decision exactly on point. Remember also, that unfortunately the nature of mooting is such that there are often no precisely applicable legal rules that can be easily identified, though the general area of the law is likely to be obvious (for example, agency, vicarious liability etc). The process of structuring your case therefore involves organising your material on a number of levels. Most important is the identification of cases or statutes that come closest to the problem you are dealing with. Remember that when you are looking for cases that are ‘relevant’, what you are seeking are cases that establish or refine applicable legal principles and not simply

cases that have similar facts. For example, your moot may involve the law of contract. The only case that you find that deals with the issue in question is one from the Court of Appeal in New Zealand. Obviously, this decision will be an important one for you to consider because, even if it is not a binding authority, it will certainly be persuasive. Once legally relevant statutes and cases are identified, you need to ask what is the status of these statutes/cases in the eyes of the court hearing your moot. Are the cases binding or merely persuasive? Were the legal statements made in the earlier decisions ratio or obiter? A decision of the New Zealand Court of Appeal or other court not in the direct legal hierarchy, though persuasive, will not be binding on an Australian court. Earlier decisions of the High Court are not binding on the High Court itself, though the High Court is careful not to change direction without fully considering the implications of doing so: see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 14. Where there is a degree of uncertainty in the law, the dissenting judgments of respected jurists may also be very persuasive (but generally only where there is uncertainty). It is therefore important for mooters to be aware of any legal authority that the moot court is bound by and to have arguments prepared as to why a particular case amounts to binding authority and should be applied/distinguished or why a persuasive authority should be accepted/rejected/distinguished. Students must establish a hierarchy of legal authority that is relevant to issues arising in the moot so that they know precisely which authorities are binding and which are merely persuasive. This is the nuts-and-bolts part of constructing your submissions. [page 45] BUT THEN, after you have all of these basic materials together, how can they all be tied together? What is the case about? And, if possible, can that ‘case concept’ be tied together in one, single pithy proposition? Some examples might include: ‘This case is about the right of states to intervene in the internal affairs of other states to protect the lives of innocent civilians.’ Or alternatively: ‘This case is about the right of states to be free of unlawful interference in

their internal affairs.’ ‘This is about the right of an injured person to recover the costs associated with that injury from a company that has maliciously and negligently acted to render them injury.’ ‘This is about the constitutionally enshrined right of states to govern their own affairs free of the interference from the Commonwealth.’ ‘This is about whether a court should admit evidence of gross wrongdoing, even where that evidence has been obtained without due process.’ If you can come up with a relevant ‘framing’ catchphrase like this, it will be easier to link all of your separate submissions together in a coherent story for your judges. If you can conceive of the case in this sort of context, it may not be appropriate to include it in your written memorials. Written memorials tend to be more formal than would allow this sort of inclusion (it is certainly useful for your oral rounds, though). However, if you can conceptualise the case in this way from the outset (or at least from early on), it will better assist you to draft your submissions as submissions for your client. Always keep this ‘concept of the case’ in mind as you undertake your research. If you can tie all of your submissions to this central theme, your judges — in both memorial and oral rounds — will better understand the narrative of the case you are presenting to them.

The Trees and the Forest 4.9 As noted above, the research stage of your moot should see you reading a great many articles, texts, cases, statutes and other relevant material. A lot of this will be very detailed discussion of narrow issues. Although you must master this detail, you should also keep in mind the broader issues involved in each of your submissions. A good mooter will have mastered the detail of the intricacies of the law involved in his or her case. An excellent mooter will also be able to address the broader public policy issues involved. In addition to that, you should also keep in mind the fact that in most moots there is a very real human element. The capacity of a mooter to move beyond black letter law and illustrate the broader implications for a finding by the court to the people, or corporations, or states involved will take them to the next level in their moot. Remember

that the findings of judges have real implications for real [page 46] people — both the parties involved in the case, and possibly for others in the future. Your capacity to evoke empathy in the judges with your client’s position will mark you as a stronger advocate than a mooter who is not able to do so. And this leads to the next point — you should try to come up with an overall case theory — you need to try to conceptualise the case.

Principle and Public Policy 4.10 As noted in the previous section, given the nature of moots, it is rare that there will be clear legal rules precisely applicable to all aspects of the moot topic. More often, there will be legal authorities supporting a range of possible conclusions. For instance, the bench memorandum2 for the 2012 Vis moot warns judges: All arbitrators should be aware that the legal analysis contained herein is probably not the only way the problem can be analyzed. It may not even be the best way that one or more of the issues can be analyzed. Full credit should be given to those teams that present different, though properly developed and fully appropriate arguments.

In the face of such possibility for varying approaches to an issue in a moot, you should ask what legal principle (if any) underlies the approach the courts have taken to similar cases. If you can distil from the relevant cases a legal principle that explains those cases already decided, and which resolves the problem arising from the moot topic in your favour, then you will have gone a long way towards winning your moot. Naturally you must seek to promote the principles you are advancing with supporting statements from cases (or perhaps international treaties or the preambles of statutes etc). It may be that there are a number of competing and even contradictory principles which have been applied by the courts in earlier decisions. In this context, it may be helpful to consider the policy behind the law in the particular area. Victory will be in sight if you can show that your client’s position will be vindicated by a decision that follows legal principles which are in accord with a policy that has broad community support or can be clearly justified on the basis of an approach founded on principles that have wide acceptance.

Clearly, the emphasis to be placed on arguments of legal policy will be affected by the nature of the tribunal hearing the dispute. There will be very limited scope for policy arguments if you are arguing an appeal to the District Court from a decision of the Magistrate’s Court on the meaning of a section of the Traffic Act. On the other hand, if you are appealing from a decision of a state Supreme Court to the High Court on some issue involving constitutional law, you might find that policy arguments figure prominently in your submissions. [page 47] As your research develops, in close consultation with your team members, you should be constructing a comprehensive and consistent line of argument that supports your client’s case. As already noted, this chain of logic will involve the weaving together of the relevant facts of the problem with the legal rules, principles and policies that can be drawn from statutes and cases that are binding or persuasive to structure a comprehensive argument which supports your client’s position. This line of argument, once established, will then operate as an essential reference point to assess the form of your proposed submissions to the moot court. Does each point you intend to put to the court sit comfortably with your thread of argument? Is it necessary for the bench to accept this point in order to endorse your case? If not, you must ask why the point is being put to the court. It could be that your line of argument is in need of further revision or that the point is unnecessary to establish your case. Importantly, what is the broader picture that underlies your case? Although you are arguing on, for instance, the issue of negligence after Mary ran over Bill when she was drunk, there is a broader underlying issue of the responsibility of individuals to their fellows. Who should be responsible for covering the costs in a ‘case like this’ (not just in ‘this case’)? Why? What is the overall purpose of tort law? What is the underlying purpose of the tort of negligence? Understanding and being able to talk about (and argue about, if necessary) these broad principles will show you are a more sophisticated mooter than one who simply attempts to apply the letter of the law without understanding why that principle has evolved or why it is thought appropriate — or indeed, what its limits might be.

The Dead Issue Folder 4.11 As you develop your arguments, you will probably develop a number of arguments that, upon further research, you decide are weak or untenable, and thus you consequently abandon. DO NOT lose your research! Do not delete your research or your written material! Although you may take this argument out of the working document that is your submissions, you may yet change your mind about the strength of that abandoned argument. Or, later, you may decide that, expressed a different way, the argument might be worth making. If you have deleted your research, it will be very difficult for you to construct this argument from scratch — so never delete anything permanently!

Strong Arguments, Weak Arguments, Consistency and Alternate Arguments 4.12 As noted above, there will often be multiple and contradictory arguments that can be made in relation to the legal issues in a moot problem. This is because the law is unsettled, or unclear, or the factual matrix you have been provided with differs significantly enough so that no one precedent applies without any doubt. Therefore, when you are in the research stage [page 48] of your moot, you will doubtless come up with several arguments you can make to justify any one submission. So, a few pointers: Address your strongest arguments first: When it comes to compiling your final memorials, you will have perhaps three or four arguments supporting each submission. In your final memorials, your strongest arguments should go first. You should also, most of the time, spend more of your word-count on stronger arguments rather than weak ones. If an argument is only, at the best, tenable, but thoroughly weak, consider dropping it altogether. This is especially the case if you consider you have a strong case anyway without making it. Ensure your arguments are consistent across different submissions: When you are preparing your moot, you are probably working on your own

submission. One of the last things you want to happen is to find that, close to submission time, you have constructed a wonderful, tight set of arguments, and so have your team mates — the only problem is that they contradict each other! This is another reason why you must all keep each other up-to-date with your progress as you research and write. Submissions should at best support each other, but at worst should not contradict each other. When an argument is an alternative argument, state that fact: You must make it clear (and this applies to oral arguments as well) that an argument is in the alternative to your other arguments, if this is the case. Otherwise it will look to the judge like you are making a concession when you do not intend to do so. Make concessions: Where you have a very weak argument, or are in a very weak position in relation to a particular argument, it is sometimes better to just concede it (so long as this does not undermine your case, but this would be very rare). For instance, consider the submission from the 2011 Jessup problem that was used as an example in the previous chapter. One of the submissions for the respondent was: Aprophe violated international law by destroying a building of the Temple of Mai-Tocao.

Now it is possible here to raise a number of arguments in defence of this claim: 1. First, the destruction of the temple was not, prima facie, an unlawful act. 2. Second, in the alternative, even if it was a prima facie unlawful act, Aprophe may depend upon the defence of necessity to justify its action. 3. Third, also in the alternative, even if it was a prima facie unlawful act, Aprophe may depend upon the defence of countermeasures to justify its action … There may be a third and fourth alternative argument here as well (note I am not actually suggesting these are the strongest arguments that [page 49] could have been made in relation to this particular issue). Now it may well be that the first argument that the destruction of the temple was not an unlawful act at all is a very weak (though weakly arguable) submission. If that is the

case, and one or more of your defenses are strong, then it may do well to concede the fact that the act was prima facie unlawful. You do not want a memorial judge thinking ‘That is just a silly argument to make! Of course it’s unlawful!’ Thus your new outline would read: 1. Although the destruction of the temple was a prima facie unlawful act, Aprophe may depend upon the defence of necessity to justify the lawfulness of its actions. 2. Further, Aprophe may depend upon the defence of countermeasures to justify its action. The second argument here is both cumulative to the first and an alternative argument. In other words, Aprophe either has two valid defences, or, if the first does not apply, the second does. You will not always concede weak arguments. Sometimes it is the fact that whomever wrote the problem wants you to make that argument (you can sometimes sense this from the fact matrix — all the elements of a defence, for instance, might be present in the facts, but in a weak way that you think would fail in argument). Certainly, if you are going to make a patently weak argument, do not devote too much space to it. Make the argument as briefly as possible. It may be appropriate to briefly include this argument (although weak) in your written memorials, but concede it in the oral rounds (this is permissible). Many judges appreciate such a concession as it shows you have some understanding of the weakness of the argument (showing you ‘know the law’) and are not going to waste the court’s time with untenable arguments.

Written Submissions — Particular Issues 4.13 There are a number of other particular issues you may want to keep in mind as you put your memorials together. Some of these are outlined briefly below.

Competition Structure 4.14 Be very aware of what parts are required in your memorials (see the next section) and when they are due. Some competitions will require submission of the appellant/applicant memorials first. The organisers will then distribute

to each team one or more appellant/applicant memorials which you will then have to respond to (at least in part) in your respondent memorials. Some competitions require the submission of applicant/appellant and respondent memorials at the same time. Some competitions require only [page 50] paper submission of memorials — while most require the submission of both paper and electronic copies of your memorials. Make sure very early on that you are thoroughly conversant with what is due when and the rules regarding how submission must be made. Remember, late submission will usually result in penalties.

Content of the Memorials 4.15 Be aware of the particular formal requirements of memorials in your competition. Some memorials are brief and contain only a few pages and a very condensed form of your submissions. Some are much more extensive. For instance, the Jessup competition contains detailed rules as to what sections must be included in the written memorials: The Memorial must contain the following parts: (i) Cover Page; (ii) Table of Contents; (iii) Index of Authorities; (iv) Statement of Jurisdiction; (v) Questions Presented; (vi) Statement of Facts; (vii) Summary of Pleadings; and (viii)Pleadings (including Conclusion/Prayer for Relief).

Other competitions have different requirements. In the absence of any guidelines, again, try to source some memorials from past competitions. If you cannot do that, determine what ‘court’ your proceeding is in. It will usually be a state court of appeal, the High Court, or an international court (but could be something else). Once you have determined this, you should be able to use your library’s resources to find an example of the form expected for pleadings in that jurisdiction. As much as possible, copy this form.

Word Count 4.16 Be aware of your word count from the outset (and remember that different sections of the memorials may have mandated different word counts). But … don’t even try to write within your word count from the outset. It does not matter if your first attempt at your memorials comes in at triple the word count (although of course this is not preferable!) — because you will have time to cut. But if you do have an excessively large first draft, you will have to steel yourself to ruthlessly cut. Getting a memorial to word count is usually one of the toughest tasks a moot team will face. Be aware that some competitions do not mandate word counts but instead mandate a page length. Even though this may be the case, there is little leeway for such a method to result in more capacity for you to write more as usually font size and line spacing will be mandated by the rules. [page 51] Make sure you are aware of whether your word count includes footnotes. Hopefully, you are organised enough that you leave at least a few days to deal with the issue of word count. Yes, it usually does take at least this long. By the time you get to the final edit you should have a pretty polished piece of work — and the more polished your written memorials will get, the harder it will get to cut words. So as a general principle you should expect that to cut the first thousand will take a day or so, the next 500 a day or so, and perhaps even the last 50 will take a day. Try to plan your timetable to leave yourself this amount of time free. Remember that if there are memorial judges, they are probably reading 20 or more memorials. If the memorials are long, they are not reading them in a great deal of detail. You MUST ensure that all of the submissions you make are supported by authority. That authority must be appropriate authority for the proposition of law you are submitting.

Footnotes 4.17 I mentioned above that although you should start footnoting early on, ‘ibid-ing’ and ‘op cit-ing’ (etc) your footnotes is one of the last things you should do. You should also leave a good amount of time to ensure that you can edit footnotes once the memorials are finished. It is often the elimination of parts of footnotes that will best help you cut words (if footnotes are included in the word count). It is also in footnotes that proofing errors are most likely to occur. These can include using different styles for footnotes, as well as cross referencing errors such as ‘op cit-ing’ incorrectly. You may think these are small unimportant errors, but they are certainly ones that more diligent judges will check (not all of them, but at least a random check) — and they will lose you points in some competitions if you get them wrong. As a general principle, although you will likely cut them later, it is better to include more references rather than fewer early on. You will not know what your strongest authorities are from the outset, so it is better to include any and all authority you can find for your arguments initially, since you can cut the weak ones later if you have found stronger.

Authority, Quality and Quantity 4.18 So what footnotes do you cut? What do you add? As a principle, every single legal principle you rely upon should be supported by authority. If the principle is more dubious, but it is more important, you should try to bolster it with more authority. [page 52] In an international law moot, it is ideal for each proposition of law that you make to cite at least one international case, one treaty, and one publicist. If it is an assertion based on state practice, the instances of state practice (statements of state officials, conduct of state organs, votes of the General Assembly or Security Council etc) should be referenced, as well as a reference where proof of that practice can be found. This should also be accompanied by an eminent publicist or some dicta from an international case. In cases of state practice, the larger the number of states that can be

cited the better, but what is most desirable is a geographical, political, and legal spread of the states involved. While this is the ideal situation with respect to authorities, be prepared to reduce the number of authorities for each proposition as a mechanism of reducing the word count (in general, it is preferable to cover many arguments with some authority than very few arguments with overwhelming authority). You will always have the authorities there if you need them in oral submissions. If it is a clearly established point or an authority of some merit (ie an authority carrying a little more weight, not a dissenting opinion from an ad hoc judge) which states the point explicitly, a single authority (case or treaty) may well be sufficient. Publicists should almost always be removed before cases or treaties. Of course, sometimes, there may only be one authority for the proposition you assert, and that authority may not be very strong. That does not mean that the argument should not be run — sometimes you will have to go with the weak authority. Sometimes, it could be the ‘cutting edge’ argument sought by the drafters of the question. Nonetheless, careful consideration should be given to its inclusion. The best way to determine how much authority is necessary is to refer to past memorials from the competition you are competing in. As a general guide in all moots — quantity doesn’t mean quality. Better to cite one strong authority rather than four mediocre ones. Even when your point is highly controversial or highly uncertain, citing only two or three sources should be sufficient. Finally, ensure you properly pinpoint your authority. Do not be lazy and simply cite the case name — tell your reader at which paragraph or pages this authority may be found.

Structuring and Headings 4.19 That you must clearly and logically structure your written memorials is as important as doing so with your oral presentation. An excellent test of whether your written memorials are logically and clearly constructed is to

read through your headings as a narrative. If you read your table of contents with each level of heading, it should present a consistent understandable narrative. If a reasonably intelligent person without any background in your moot can read your memorial headings and make sense of your case, you are probably on the right track. [page 53] Headings should as much as possible also be stated in propositional form. Instead of the heading: Relevant law: The Trade Practices Act try The Trade Practices Act is the law governing the conflict between the appellant and respondent The second heading is a fully comprehensible sentence — the first is a summary. A person reading the second understands it fully in the context of your moot, whereas a person reading the first has to make assumptions about missing information: [The] relevant law [that should be applied in this case is] the Trade Practices Act. In both your written and oral submissions you want to minimise as much as possible how your reader or listener has to think to understand your meaning.

Duty to the Court and Proper Procedure — This isn’t a US Television Courtroom Drama! 4.20 In the preparation of your written memorials you must include all of the submissions that you want to make in the oral rounds. In other words, there is no capacity for you to spring that surprise witness on the day of the moot. This is not only a principle incorporated into most competition rules. Most rules will require you only to make the submissions you have made in your written memorials and will prevent you from making ‘new’ submissions that you did not make in your memorials. This does not mean you have to make

all of the submissions you made in your written memorials — you can abandon some, or decide not to rely upon them. The purpose of the rule is, first, to prevent teams from using new arguments they may have just discovered on the day before their moot from an opposing team’s memorials, or from their moot the day before. Second, it enshrines the practice of actual courts. In a court proceeding each side would be well aware of their opponent’s submissions prior to the day of the hearing. All courts have complex procedures to ensure that this happens. This is a matter of fairness and justice, since a party should always be in a position to ‘answer the case made against him or her’. Courts do not (except on very rare occasions) allow parties to plead arguments that they did not place the other side on notice of, as this would unfairly prejudice their ability to undertake their own research and prepare an answer to those arguments. So, you cannot ‘hold back your best argument’ for the oral rounds — you must put your opponents on notice of it. The second ethical duty you need to be aware of in writing your memorials is your duty to the facts. You may not mislead the court by misconstruing the facts. You may put a ‘spin’ on the facts to suit your case [page 54] — but not to the extent that you misconstrue them. This is the case in both the oral and written parts of your moot.

Multiple Copies and Back-ups 4.21 As a practical issue, you should make sure you back up your work regularly. All law students should know this — from that first time that you spent three hours working on your assignment only to have the computer fail and those three hours’ worth of work are lost. This is certainly not something you want to happen when undertaking complicated in-depth research. Remember also to back up in multiple places. In addition to saving your work on your university’s server, you might consider using the Cloud or Dropbox, or some other off-site storage that allows you to save work you do on your own laptop or desktop directly to the same source (and also allows sharing of your documents with your team mates.

Having said you should always and in multiple sources back up your documents, you should also be aware that multiple backups can also lead to confusion as to which version is your current version. This can be disastrous in some circumstances. I recall one time when one of my moot teams submitted their final memorials only to realise five minutes after the submission deadline that they had submitted the second to last draft of one of the memorials that had a ‘comment’ still inserted to the effect of ‘What is this cra**y argument still doing here??! Delete!!’ Luckily the organisers allowed a re-submission. So you need a way to keep track of your versions — ensure you always know which is your current version.

Some Stylistic Issues 4.22 The following tips are not listed in any particular order: Use macros and styles from the outset rather than assigning them later: This saves time. Also ensure that each team member, who is probably working on a different document at the outset, has the same styles and macros on their version of their word processor. Don’t use too many heading levels: Three is probably enough. I would be concerned at four. More is not permissible! Don’t use legalese: Try to keep your language as ‘plain English’ as possible. Research has actually shown that a person who writes with extensive use of legalese or excessively complicated style is thought to be less intelligent by readers as contrasted to someone who can express their ideas clearly in simple English. Use proper names: Written documents that use ‘respondent’ or ‘appellant’ are more likely to be confusing to a reader than if you had used the proper names of the parties. It is easier to understand that ‘Mary ran over Bill when she was drunk’, than ‘the appellant, the plaintiff in [page 55] the lower court, ran over the respondent, the defendant at first instance, when she was intoxicated’. Remember, as much as possible, you want to paint a picture.

Cut unnecessary words: It is remarkable how much clutter you will find in your written work if you look carefully for it. Many law students tend to adopt an unnecessarily dense style. Minimise the passive voice: ‘Mary ran over Bill’ not ‘Bill was run over by Mary.’ If you don’t get it, look up a guide on grammar. Avoid wordy prepositions: such as ‘with respect to’, ‘in connection with’. Again, they undermine clear understanding. Spell out numbers one to ten, use numerals for higher numbers. Obtain the Australian Guide to Legal Citation (3rd edition): Use it, unless the rules require you to use a different style — in which case, use that one.

The Lead-up to Submission 4.23 Some of these points have been covered above, but they are worth restating here. Time management: Remember — you will always be short of time! You will never have enough! You must be brutal with your planning and you MUST leave enough time before submission for editing — as much as possible. Formalities: Remember that some competitions have quite detailed requirements in relation to formalities (see 4.14 above). Don’t forget them! You do not want to get to your final edit and realise that you have to do a summary of pleadings and statement of facts. Assign them to a team member in the final weeks of preparation and ensure they stick to the deadline. Anonymity: Almost all competitions assign you a team number and require this and this alone to identify you on the front of your written memorials. Make sure this is the case. Be aware also of the fact that when you work on different computers and create a document, sometimes the user will be identified in the document properties. If you have started your memorials or worked on them on a university computer, this may well be identified in the document properties. If so, erase them. Most competition organisers will not check this, but there was a controversial decision one year by the Australian Jessup administrator to impose penalties on teams that had not erased these obscure identifying marks. Better to be safe than sorry and erase!

Multiple copies: As stated above (4.20), make sure you submit the correct final version of your memorials! [page 56] Print before submitting: If you are making your first submission electronically, you should print it off before submitting and check the hard copy. Sometimes printing a document will alter the formatting (or so it seems) or printing will show you an issue that you for some reason cannot see on screen. The number of times that a dreaded ‘error! Bookmark not defined!’ will show up on the printed page when it just isn’t there on the screen is astounding. No doubt you will come across other issues as you put your memorials together. The issues that can arise are endless. My final suggestion is that you record them. Make a note as you go along of issues that arise in your preparation so that you can provide that wisdom to future teams. If you can give your successor just one tip that makes their preparation easier, they will be that one step closer to winning their moot. _______________________ 1.

Kirby J, ‘Ten Rules of Appellate Advocacy’ (1995) 69 Australian Law Journal 964 at 971.

2.

A ‘bench memorandum’ is a summary of a moot problem prepared by moot organisers as a guide for judges.

[page 57]

5 C H A P T E R

Preparing for Oral Submissions Basic Principles When to Begin Mooting? The Structure of Oral Submissions The Key (or at Least One of Them) — Flexibility Practice, Practice, Practice Moot Materials — What You Should Be Taking with You into a Moot, and How You Should Arrange Your Materials Authority Presentation Other Oral Advocacy Skills Responding to Questions

A Final Difficult Question — Who Should Moot? 5.1 Although I have emphasised above that mooting is more than just the ‘oral rounds’ — it also involves a huge amount of work in preparing written submissions — most students become involved in moots for the challenge of the oral rounds. And it is indeed the oral rounds that are the most exciting part of a moot. Below you will find an extensive array of tips to allow you to begin to prepare for your oral rounds.

Basic Principles 5.2 Where to begin this chapter, which really is the core chapter of this book? You are no doubt mooting because you enjoy being on your feet in front of an audience — because you enjoy the experience of advocacy. You [page 58] may have debated before, or get a rush from public speaking — or perhaps have even mooted before. Whatever it is, there is no doubt something about that experience of being at the podium, forced to make quick decisions and engage, virtually, in battle, with your judges and your opponents that has inspired you to want more. Whether or not you have basic skills in public speaking or debating, hopefully some of the tips in this chapter can make you a better advocate. Remember, as you start, however, that mooting is different to both public speaking and debating. Although you may excel at one or both of these, you will have to learn some additional skills (and in fact un-learn, or at least temporarily forget some skills) in order to do well at mooting. The following are the basics you should keep in mind as you prepare your oral presentations. Each is discussed in greater detail below. Oral submissions do not follow written submissions: The way you communicate orally is different to the way you communicate in writing. Crucially important, the way your judges judge your case, when presented orally, is different to the way they judge your case on the papers. You need to understand this and adopt different strategies to do well in your oral rounds.

Paint a picture: Advocacy is not about explaining the law in great detail ‘in abstract’ or ‘in theory’. That’s the job of a textbook, or, in your case, your written memorials. Advocacy is about convincing a judge they should find for you. In order to convince a judge that they should find for you, you must paint them a picture. What happened to your client, what position is your client now in, and what position should your client be in after the judge’s judgment. Your judges must go away from the moot, at its end, happy with the decision they have reached. This will not always win for you, because this isn’t a real case: sometimes the judges will award a win based on the advocacy rather than on whose case they think is stronger — and this is appropriate in a mooting competition. But, if you do win the case it will be easier to win the moot. It is easier for people to understand a situation when you explain it clearly in a narrative way. The facts, therefore, are crucially important to you putting your case well. If the judges don’t have a very clear picture of what happened, they will not be able easily to find for anyone — let alone you. Remember that a story well told is a continuous narrative. It has a starting point that sets out the characters, then explains what happened to those characters, and, if it is a story well told, it moves to a logical and to some extent obvious conclusion. It makes sense. If it were told another way, it would not make sense. It is not that Sleeping Beauty just happens to wake up, it is the case that the story demands she wakes up — it would be absurd and illogical if she didn’t. What you are aiming for, in telling your story, is to construct a story in the same way. What you are aiming for is a story with just one logical conclusion — and that conclusion is one that favours your client. Keep your case in mind: Don’t lose sight of the big picture. You have a client and they have suffered an injustice — or perhaps they have been accused of wrongdoing (civil or criminal) of which they are not guilty. [page 59] Always keep in mind that you are in your moot to convince the judge of the rightness of your case. This is especially important in the way you respond to judges’ questions (see below 5.33–5.36). Every question is an opportunity not just to answer a question, but to put your client’s case.

Advocacy as a ‘full body art’: You convince not just with your arguments, but with your voice, with your eyes, with your hands, with what you are wearing, with the shine on your shoes. Advocacy is not just about being right, it is about appearing right. Your responsibility to the court: You want to win your moot according to the law. As a barrister, which many of you will go on to be, your first responsibility is to the law and to the court to which you made a sacred oath. This is the nature of professional practice. You should adopt this same mindset now in your ‘mock court.’ You must always argue according to the law. If there are cases against you, you cannot ignore them, it is your professional responsibility to distinguish them. Part of your job is not simply to represent your client — but to see that justice is done. So never mislead the court.

When to Begin Mooting? 5.3 The first question to be answered by a moot team is when should you begin to moot? My answer would be ‘the earlier the better’ but I would provide this answer with a note that there are a few positives and negatives for an early start. First negative: It is likely that the earlier you begin to moot, the less you will have to say. When your research has only just got underway it is likely that your arguments will be half formed and sketchy at best. You may have trouble actually putting them into a ‘mootable’ form. This can lead to a less than satisfactory practice moot which in turn can dampen enthusiasm for the whole process. Second negative: Moots take time to prepare, and you are probably desperately drowning in the research process. Although it is true that moots take time to prepare, at this stage you — and whoever is judging you — should not be too concerned with you presenting a polished moot. Beginning mooting early serves a number of positive purposes — and this requires you to start slowly, without too much preparation, and without the expectation that you will be even close to your final polished performance in those early moots. First positive: Mooting early will give you more practice with your

advocacy skills. Even if you do not have a great deal to moot, beginning practice early will allow you to work on things like eliminating annoying habits, getting your stance at the podium right, and allow you to work on your voice’s tone and pitch. You don’t need a great deal of material to do some useful work in this area — so don’t worry that you have little material to moot with. [page 60] Second positive: This is the most important positive. Mooting your submissions as you develop them will help you determine your stronger and weaker arguments. An argument that may sound good in your head might sound just the opposite when you are actually forced to put it to a judge and have the judge question you on it. Having someone else quiz you on an issue and forcing you to defend it will inevitable expose weaknesses you had not previously identified. It is only then that you can begin to tinker with your arguments — or perhaps even decide to abandon them (don’t do this too early!). My suggestion is, therefore, begin as soon as you have enough material to make some basic arguments. Note that I did not say ‘begin as soon as you are comfortable you have enough material to make some basic arguments.’ You should start to break out of your comfort area by beginning to moot before you feel you are fully prepared. Your early moots do not even have to be ‘full moots’. That is, they do not need to go for a full 40 minutes if that is how long your moots during the competition are going to go for. You do not need to moot both sides. If you have one argument, even in its rudimentary stage, moot it as if it is ready for competition. You have nothing to lose and everything to gain from the exercise.

The Structure of Oral Submissions 5.4 One of the most important things you should keep in mind from the beginning of preparing your moot is that the structure of your oral arguments will not mirror the structure of your written submissions. Readers absorb information in a different way than listeners do, and you should be prepared

to alter the order of your submissions to that of your written submissions. You should also be prepared to alter the structure of your oral submissions multiple times before you arrive at the order that works best. You may find that there are weeks or even months where you struggle with the order of your submissions to maximise their impact — and struggle without success. It may only be after you have tried several different structures that you hit upon the one that works best for you. So this is another key early on: be prepared to be flexible. You cannot get wedded to a particular argument put a particular way, even if it does actually sound logical and convincing. Perhaps with a bit of tweaking it can be even better — and until the very last stages of preparation you want to remain open to improvement.

Division of Arguments 5.5 One of the questions you need to consider before the oral rounds is who will present which argument. This is usually an easy decision to make because your research has clearly shown you (or decided for you) that there are four main submissions you need to make (although each submission may have some stronger and some weaker arguments supporting it). Or [page 61] perhaps you have one long argument, and two shorter ones. Or perhaps three arguments and a short procedural argument (such as ‘This court has no jurisdiction to hear this case’). Each of your counsel will generally speak for approximately the same time. Be aware of the rules for your competition. Some competitions dictate how the time can be split, whereas most will say something like ‘Each side shall have 40 minutes to present their case. The team may decide how to allocate time between mooters, but no one mooter shall speak for less than 15 minutes’. This would allow for a 25–15 minute split among speakers but not a 26–14 split. Usually you would want to give each mooter approximately the same time, with no more than a two to three minute difference between speaking time. You will want to experiment with different splits as you develop your moot across practices, as your arguments develop.

Appearances and Beginning 5.6 The very first part of your oral round is your appearances. For those of you who have not mooted before, this is where you announce who you are, who you appear for, and for how long you will speak. The moot would have started with you sitting neatly at the bar table, waiting for the judges to enter the room. Your table area should not be cluttered. If need be, and if it has not been provided for you, a bottle of water is acceptable. Other than that, you should have a folder containing your submissions and supporting material (more on this later), a pen, and a note pad. There is not much need for anything more. Do not think you are going to impress the judges with a bar table cluttered with learned text books. You want your judges to think (especially as the moot progresses) that it’s all in your head. You certainly won’t have time to go paging through a learned tome during the moot, and it looks pretentious — even more so when you ostentatiously display a text that one of your judges has written. Don’t — they’ll see through that one in a second. You are sitting at the bar table then. You are sitting straight and not slouching. You are looking towards the door where the judge will enter, or at the timekeeper or ‘judge’s associate’ who has taken your names for the judges. You most certainly are not chatting, laughing and joking with your colleagues or other team members. Or if you are, stop it a while before the judges are expected — you want to get in the right frame of mind. The judges’ entry will almost always be announced: All rise! This court is now in session in the matter of Smith and Jones. Justices Brown and White with Chief Justice Black presiding!

At ‘All rise’ you will rise. The judges will come in, they will go to their chairs, they will arrange their papers and (if they do it properly) they will bow. You will bow in response. You will wait until they have sat and then you will sit. [page 62] That is how a moot starts. You should practice all the little formalities in your moots as much as possible — especially in those practice moots leading

up to the actual competition — simply so that these actions become second nature to you. Once you have sat, the judges will probably spend a moment or two arranging their papers. At this point, senior counsel for the appellant, or applicant, may move to the podium. You can probably leave your folder at your seat for the time being, since your appearances will have been memorised and you do not need a prop to deliver them. Alternatively, senior counsel can sit patiently and wait till called. Or, as a middle path, if the judges are taking a little time to get ready, wait a few moments and then go to the podium. When you do so, you should get calmly up from your seat, button your coat, and put your seat back in. Do not rush. You are calm and you have done this a thousand times before (or at least that’s the image you want to get across to your judges). Do not begin speaking until you have all the judges’ attention, or until the presiding judge gives you a signal to proceed. The signal may be a simple nod, or it may be something like ‘Can I have your appearances please, counsel?’ or ‘We’ll take appearances, please’, or simply ‘Thank you, counsel’. You should give a deferential nod, and then provide your appearances thus: Your Honours, my name is Smith and I appear with my junior counsel Jones. We appear for Nasty Bank Proprietary Limited, the appellant in this matter. I will speak for 15 minutes and my junior will speak for 14 minutes. We reserve 2 minutes for rebuttal. May it please the court.

That is it. You have begun. Remember that this is the first opportunity that the judges will have had to see you — and they will certainly be judging you! Do you look professional? Do you appear calm and confident? Was your voice loud (but not too loud) and well modulated? Did you get it right without slips? First appearances (so to speak) matter. A judge will have made a judgment of how they expect you are going to perform in that first minute. You will have the following quarter of an hour to confound their expectations (if your appearances were poor) or confirm them (if they were good). In relation to the wording above, different courts have different traditions as to giving your names. If you were appearing before a High Court judge, you would give your surname only without your initial (unless you are Jones and there is another Jones on your or the opposing team — in which case you would use your initial). The Jessup competition tradition is ‘Jones J’ with the initial. For most competitions it is equally acceptable just to give your full

name: Your Honours, my name is Rebecca Smith …

It does not really matter so long as you are confident and professional — but it doesn’t hurt to find out what is commonly used in your competition. Once senior counsel has given their appearances, they will pause for a second after concluding, and calmly sit. Senior counsel for the respondent [page 63] will then rise and follow the same procedure. Senior counsel for the respondent will then sit. Senior counsel for the appellant/applicant will then either chose to rise or will wait their call from the presiding judge. They will then advance to the podium — this time with their folder. They will then commence their case.

Crucial Beginnings — ‘This Case is About …’ 5.7 One of the things you may consider doing early, because of course you want to get the judges’ attention, is to give a quick and pithy one sentence summary of the case. Some cases are drafted to allow this, while some others are drafted in a way that does not facilitate such an opening. I gave some examples in Chapter 4 as follows: ‘This case is about the right of states to intervene in the internal affairs of other states to protect the lives of innocent civilians.’ Or alternatively: ‘This case is about the right of states to be free of unlawful interference in their internal affairs.’ ‘This is about the right of an injured person to recover the costs associated with that injury from a company that has maliciously and negligently acted to render them injury.’ ‘This is about the constitutionally enshrined right of States to govern their own affairs free of the interference from the Commonwealth.’ ‘This is about whether a court should admit evidence of gross wrongdoing, even where that evidence has been obtained without due process.’ Although it is useful to try to conceive of this overall ‘theme’ for your case during the research stage, it is more crucial to try to achieve this in your oral

arguments. The purpose is to try to get into your judges’ heads the overall question that they will be asking themselves for the remainder of the moot. It is especially useful if you can (although don’t go overboard with this) phrase the question in such a way that the question itself ‘suggests’ its answer. So, for instance, the question phrased in the first dot point above is emotionally charged because it talks about the right of a party to protect innocent civilians. Almost all judges will agree with the proposition that if someone is a civilian they should be protected in a time of war — in fact this is enshrined in international humanitarian law. The use of the word ‘innocent’ in your statement reinforces this probably unconscious conception — of course ‘innocent civilians should be protected’. If you are successful in phrasing the question in this way, your opponents will now have to show why innocent civilians do not deserve protection — not an enviable position to have to argue! You will see why, if this is done successfully, it advantages the applicant. The applicant has framed the statement for the judges, and hopefully after 40 minutes of submissions that statement is firmly the one in the judges’ minds that the respondents now have to address. [page 64] If you have phrased your statement like this, you will then need to remind the judges that this is the question in their head, as much as you can throughout the moot. Simply rephrasing or restating the statement in relation to each of your individual submissions, and showing how that individual submission helps to answer that question is one way to do this. Using the key phrases from the statement helps as well — ‘innocent civilians’ and ‘protect’ would be key phrases to weave into your submissions in this respect. If you are the respondent, and you see that the applicant has done this successfully, you will have to do your best to re-phrase the statement for the judges. If you can do this early on in your respondent submissions, you may undo the work done by the applicants: Your Honours, this case is not really about the ‘protection of innocent civilians’; it is about the stability of the international legal order, and whether a state may use any justification to interfere, with force, in the internal affairs of another state, simply because it does not approve of that state’s politics. One of the cornerstones of the international system for the past century is that

such interference is not lawful.

Crucial Beginnings — Signposting and Starting 5.8 So you have started your case with a catchy and (slightly) dramatic introduction to your case. What do you do next? A typical opening minute or so might be as follows: Your Honours, this case is about an individual who has been injured because of his own recklessness — and about whether that individual should then be able to use the court system to get someone else to pay for that recklessness. We submit that the court should not aid such an individual. (Pause) Your Honours, we have four submissions. First, as a preliminary matter, we submit that this court does not have jurisdiction over this matter, as the plaintiff filed his application for relief out of time. Second, if this court allows the plaintiff to proceed with his case, we submit that, although the respondent did owe the plaintiff a duty of care, it fulfilled that duty. Third, and in the alternate, we submit that even if there was a breach of a duty of care, the plaintiff’s actions amounted to a voluntary assumption of risk. Fourth, also in the alternate, that even if there was a breach of the duty of care, the respondent is not liable for the plaintiff’s injury as a result of the operation of section 18 of the Civil Liability Act. Put simply, the plaintiff was engaged in what the Act refers to as a ‘dangerous recreational activity’ and therefore the respondent is not liable for his injuries. Your Honours, I will address the first and second submissions, and my junior will address the third and fourth. Before I move to our submissions, your Honours, I seek leave to dispense with full case citations.

[page 65] Judge: Are those citations in your written submissions, Mr Jones? Yes your Honour, they are. Judge: Very well then. Thank you your Honour. Moving then to my first submission — that is, that the respondent filed his case out of time, and therefore this court should not proceed to hear this matter …

In most moots, the opening will be structured in this or a similar way. The purpose is to outline to the judges very clearly what your case is, and which mooter will address which of your submissions. In relation to the above, note the following: Signposting: Each time you move between the different ‘parts’ of your submissions, you need to make it very clear to your judges that you have

done so. Thus, ‘Moving now to my first submission’. It does not necessarily have to be this obvious. Perhaps at the end of your first submission you want to pause, look down at your papers, look back at the judges and say something like ‘Your Honours, the essence of our second submission is …’, making it quite clear that it is your second submission you have now moved to. Thanking judges: It is appropriate to thank a judge, or judges, if you have sought leave to do something and they have granted you that leave. It is sometimes said that you should never thank a judge — but this is simply not true. Dispensing with citations: It has been traditional in moot competitions to ask the bench for permission to ‘dispense with full case citations’. You do not want to have to say: Your Honour, I refer you again to the case of Australian Blue Metal Limited and the Council of the Municipality of Perth in volume 110 of the Commonwealth Law Reports at page 102, particularly the judgment of Justice Kitto at page 113 …

when a simple Your Honour, I refer you to Justice Kitto’s judgment in the Blue Metal case at page 113 where his Honour stated …

will suffice. However, this tradition seems to have been diminishing in many competitions without any adverse impact on mooters. Again, find out from previous competitors in the same competition whether it is traditional to include this (if you are mooting at a junior level in high school mooting, I would retain this request of your bench). Junior counsel or co-counsel: Traditionally if two barristers appeared in one case, it was because a ‘senior’ was ‘leading’ a ‘junior’ (thus ‘senior counsel’ and ‘junior counsel’). However, in most mooting competitions ‘cocounsel’ is acceptable. Be aware that, for international law moots, most mooters appearing will refer to themselves (and the judges will refer to them) as ‘agent’, not ‘counsel’ (even though counsel can and do appear before international tribunals as well as agents). [page 66] I and we: Do you say ‘we have four submissions?’ Do you say ‘It is our

submission that …’ or ‘It is my submission that …’? Traditionally, where a senior was leading a junior, senior would usually use the ‘I’ when making submissions, and junior would use the ‘we’. Nowadays, this is more observed in the breach than in the observance, but to be technically correct you may follow the above rule (it won’t make any difference to your score if you don’t!). Whatever you do, though, try to follow a consistent rule. Thus, always have senior counsel use ‘I’ and junior ‘we’, or all counsel always use ‘we’ and ‘our’. Hello judge! You will note in the above that counsel did not greet the bench with a ‘Good morning, your Honours’! This may be acceptable in a North American moot, but generally English and Australian courts preserve a more formal interaction between bench and bar table. So, don’t say hello. Alternative arguments: Where a submission is in the alternative to one of your other submissions, state this. This will save a judge being confused by what appear to be contradictory submissions (more on this below).

The Key (or at Least One of Them) — Flexibility 5.9 One of the keys to mooting is flexibility. That is, your flexibility. A mooter cannot be tied to a script. When you begin your submissions you must be ready and willing to ‘go where your judge wants you to go’. You cannot answer a judge’s question with ‘I will get to that later in my submissions, your Honour.’ If the judge wants you to go there, you must go there. Remember, the marks you get for your capacity to confidently and flexibly answer questions usually makes up about 30% of your overall moot marks. Many mooters think that this interrupts the logic of their submissions, and maybe sometimes it does. However, a judge is usually asking you a question because they want to understand your submissions. If you fail to answer their question, they will fail to understand your submission. There is more on judges’ questions below. Flexibility comes with practice. If you have gone through your submissions 50 times before, you are bound to know them inside out. This means you should not have many real problems with jumping about within your submissions. However, although a judge will be impressed with your

ability to address any issue put to you, they will be less impressed if you are unable to return to your argument in a logical way. You need to keep in mind, as you are answering a judge’s question, where you were up to in your submissions, so you can return to that place (if it is still relevant). Sometimes the fact that a judge has moved you to another part of your submissions may mean that you should not return to your original ‘place’. Perhaps the discussion you have just had makes such a return redundant, [page 67] and it would be better to move to another of your submissions. To do this properly, you must be aware of what the essential points of your argument are and what you can pass over or concede without such a movement being an interruption to the logical flow of your overall argument. There are different ways to ensure flexibility. Some mooters like to have a ‘script’ in front of them, even if they are not going to rely upon it for what they are actually going to say. Instead it acts as a point marker — reminding the mooter where they are up to. With this method, you should be able to turn your pages automatically without looking at them because you know exactly where in your script you are up to. When you have finished answering your question, a quick glance down should be enough to remind you where you were up to, and you can continue. This is not the most ideal solution, because it still ties you to some extent to a linear approach to your material, but, if you are able to skip passages in your script when necessary, this should be a sufficient method to mark place. Ideally, you should not need notes at all and should not need a script to deal with judges’ questions as, first, you are so conversant with your material that you simply don’t need to refer to it and, second, most of the questions you will get from your judges will probably have been anticipated — or even experienced in a practice moot — prior to your actual competition moots. If you have previously received a questioning, or line of questioning, that has thrown you in practice, you should consider how you will deal with that particular question or questions if you get them in your actual moots. Finally, you should avoid asking a judge whether you can return to your

submissions after you have answered a question. If you have answered a question, simply move back to where you want to go. If the judge has any more questions, be sure they will ask them anyway. In a similar way, do not ask ‘Does that satisfy your Honour?’ If a judge is looking confused or concerned, or unconvinced at your answer, perhaps rephrase it for them, rather than asking if they are happy.

Practice, Practice, Practice 5.10 I have stated already above that the more you practice, the better you will be. That is why you should start practicing as early as possible, and you should practice as much as you can. When you practice, practice as if you are in your moot. Emulate the actual conditions of your moot as much as possible. Stand when you are making submissions if that is what you will be doing in your moot, and sit and give them if that’s what’s going to be happening on the day. Where possible, practice in front of a judge (rather than in front of a mirror, or to an empty room). A team member is fine for a judge if your coach or academic adviser can’t do it. Or get other students to judge — [page 68] especially if they have mooted before, and especially if they have mooted in your competition before. The wider the variety of judges you get the better. It does not matter if the judges are not conversant in the area of the law of your moot — it is quite possible that you will get some competition judges like that. Having said that, it is also good to get some experts in the area so they can test the depth of your knowledge. Don’t worry, also, if you get the occasional judge who asks a stupid question. It is quite possible you may get a judge in your moot who does just that, so you need to practice just what you are going to do and say if that happens — in other words, you must be prepared for anything. Questions: In practice moots, you will usually be asked a great number of questions. As you are actually mooting, it will be inappropriate for you to be writing down each question as you receive it, and you certainly can’t be

expected to remember them all by the end of your moot. Therefore, one of your team members should be recording each question as it is asked, and you should be doing the same for them. This is especially the case where the question is a new one and you did not have a completely satisfactory answer for it. Suit up: Where possible, your moots should be as close to the real thing as possible. If you do not regularly wear a suit, then practice as many times as possible dressed as you will do for the moot. Again, you want to look and feel as if wearing professional attire is second nature for you. Especially for women, if you are going to be wearing heels during your moot, you will want to practice in them regularly, since it is likely that you stand at the podium differently when wearing one type of shoe than another. You will want to have someone else monitor what you do in those shoes, to eliminate any bad habits (rocking back and forth etc) or posture problems before you moot. Stay ‘in character’: It does not help you if in all your practice moots you roll your eyes when you make a mistake, or you ask if you can try answering a question again, or you crack a joke when your partner makes a mistake. Although the occasional lapse is acceptable, the whole point of practice is to practice as if you were doing it in reality. You need to learn to deal with mistakes with a confident demeanor — since you will probably make a mistake or two in the moot — and you certainly don’t want to be rolling your eyes then! Take every mistake you make in practice as an opportunity to practice how you will deal with mistakes if you really make them. Practice bench manner: It is hard to sit still and to look professional and interested for an hour. But this is exactly what senior counsel for the applicant must do when they have finished their submissions, and it is what junior counsel for the respondent must do prior to beginning theirs. So this is something you need to practice too. Between practices: During each practice moot you will have been asked a dozen or more questions. By the time you moot again, you should have done your best to have developed an answer to each of them. This [page 69] may mean that you are going to have to engage in some more research.

Depending on how you went, it is also possible that you are going to have to reorganise your ‘script’ (if you use one) or your materials. After a particularly significant moot, you may decide that you are going to totally restructure your arguments, abandon one or more of them, or redesign your approach to a particular issue in your moot. Expect, therefore, to be busy in between practices — especially early on. Different types of practice: Although you should practice as many moots in real competition situations as possible, it may also be that you would benefit from approaching some of your practices differently. Especially if there is an issue you are sticking on — perhaps a question from a judge that you have received more than once — it is worth workshopping that particular question rather than mooting straight through. That is, you may want to try different approaches to the question, and different ways of answering it, until you have something that satisfies you and satisfies those listening to you answer it. You should also vary the amount of questioning you get in your moot practices. In some of your actual moots you will have very interventionist benches and in some you may have almost silent benches. You need to be able to deal with both. Different rates of questioning will radically affect your timing. You might be able to get through almost twice as much material in front of a silent bench as you will be able to do in front of a particularly interventionist one. You need to have strategies to deal with both types of bench (and all in between, of course) and simply knowing you might have a silent bench will not prepare you for it when it actually happens unless you have practiced the eventuality. You will lose points in your moot if you were meant to moot for 18 minutes but only mooted for 13.

Moot Materials — What You Should Be Taking with You into a Moot, and How You Should Arrange Your Materials 5.11 You should try to take as little as possible with you into your moot. Do not encumber yourself with textbooks and folders of papers — you will not have time to refer to them. You must have all of the material that the judges have been provided with.

You should have a copy of the problem and of your memorials (as well as of your opponents’ memorials if they have been provided to you). You should have a copy of the ‘bench book’ (see Chapter 6) if you have been required to provide a copy to the judges. If you are using a script, you should of course have a copy of it. Other than this, a pen or two and a notebook is appropriate, and perhaps a water bottle, but no more than this. [page 70] You should try to arrange all of your material in the one neat folder. Where necessary it should be clearly tabbed so you can quickly move to relevant material — and you should be very familiar with how you have arranged your material so you can quickly do so if called upon to do so by a judge. An excellent system of arranging your folder is to do away with tabs altogether, and instead use a side-by-side system for your material. On the right hand side of the page is the script of your submissions (which you will not be referring to except to mark your place). On the left hand side of the page ‘facing’ your script is your relevant authority. For example, if in your submissions you refer to s 148 of the Victorian Cats and Dogs Act, then on the left hand side of the page you will have the text of that section in full. This is because it is quite possible that a judge will ask you for the text of that section if you cite it. Rather than having to go to a tab at the back of your folder, instead the text is right there in front of you. This is a much quicker and neater way or organising your materials. Similarly, if you refer to the case of the ‘Commonwealth v Y’ you can have a brief summary of the case, listing the facts, the year it was held in, the court, the judges who heard the case and whether they were in the majority or minority etc on the left hand page. Again, these are the sorts of things a judge may ask you if you mention the case, and, although you want to commit as much of this information to memory as possible, you cannot possibly remember it all, so having it there in front of you rather than having to go and find it is a much better system than a folder with 20 tabs.

Authority

5.12 As noted above in Chapter 4, every legal proposition you cite in support of your submission should be supported by legal authority. Hopefully, in fact, for most arguments you have multiple authority. You are not, however, going to cite all of your supporting authority each time you rely upon a proposition — you simply would not have the time. Although detail of all your authority should be present in your material (and see above 5.11 for suggestions on how to arrange it), it will be rare that you cite it. You need to ensure that you cite some authority throughout your moot, because you don’t want a judge who does not ask, or a silent bench, to walk away from a moot thinking you were ‘light on your legal authority’. The ideal situation is to be able to cite authority for a proposition and have a judge ask, ‘What is your authority for that proposition, counsel?’ and for you to be able to go into more detail: Counsel: That was held in the case of X and Y, your Honour. Judge: Oh yes? And in what year was that heard, counsel? Counsel: In 1966, your Honour, and in a unanimous judgment five members of this honourable court held that a party is precluded from claiming negligence in a case almost identical to this one.

[page 71] Judge: And what were the facts in that case? Counsel: Well, your Honour … etc … and as your Honour can see, that case is very much on point here, because …

Using this method of dealing with authority will impress a judge because, as soon as you are asked, you are able to show a detailed understanding of and explain the relevance of your authorities in great detail. If you do this once or twice, hopefully your judges will think you are able to do it whenever they ask.

Presentation 5.13 There is a good deal that can be said about advocacy skills and, in a chapter of this size in a book of this size, only a summary can be given, but what follows is an outline of the main things you should be looking to get right during your practice moots.

Stance 5.14 At the podium you should be standing relaxed, on both feet, with your feet spaced slightly apart, with no rocking back and forth. As with everything else, you want to ensure that you do not have any presentation habits that are going to distract your judges. You should be comfortable and be able to maintain the stance for the duration of your moot. Do not stand too far from the podium and table because this would be likely to make you lean forward onto the podium — which can look either slovenly, or in some instance aggressive (you are leaning into the judges). Make sure you stand straight — do not slouch. This may take some practice if you are a natural ‘sloucher’ — but it makes a huge difference to a judge’s perception, so work on it. If you are wearing heels in your competition moots (as a general principle, try not to — it’s not good for your feet!), then practice in your heels as there will be a difference to your appearance between those times you are wearing heels and those when you are wearing flats.

Hair 5.15 The basic rule is keep it neat. Particularly with female mooters, hair that is not under control can be distracting. The wisp of hair that is continually escaping and needs to be tucked back in can be distracting after the fifth time. Long hair should be tied back neatly. Call me conservative, but long hair on a male mooter is not desirable. On this point, you may be thinking that this is going too far. I am sure that no moot judge would deliberately deduct points from a mooter because he has long hair, but remember that most current judges are conservative and many barristers, especially male, only a little less so. You wish to avoid even an unconscious negative reaction to your appearance, so, if your moot happens to have such ‘conservative’ judges, consider getting a haircut! Remember, when it is a very close moot, every small advantage will help. [page 72]

Clothes and Jewelry 5.16 Like everything else about your appearance, the key is conservative and

not distracting. If you wear jewelry, consider removing it, especially if it is likely to jangle in the moot, or especially if it is loose and will continually require your attention to readjust it. Clothing should also be formal (a suit) for both males and females, trousers or skirts for females. If skirts, not too short, and, on that point, ensure you have sufficient buttons done up! Research has clearly indicated that attractive people are more likely to make a better first impression just because they are attractive. If you are an attractive female who is seen to be trying to leverage that fact, the attempt is likely to backfire. For males, a conservative tie — no cartoons and no overtly political messages. There is little room for whimsy in mooting. If you do not have a suit that fits, perhaps now is the time to get one. And spend money on a good quality suit that fits. You will no doubt need one shortly anyway as you begin to look for internships, placements and, before too long, jobs. Law firms (and the bar) tend to be among the most image conscious professions. There is some justification for this. Along with the old adage that people think that people who look successful are successful is the fact that, especially in the big firms and at the bar, clients are paying a lot of money for your services. The very least you can do is look as professional and polished as possible (you may think this sounds shallow and maybe it is … but that’s the way it works). So invest in a good suit that fits well. It is an essential tool of a successful professional. (Please note that I am not suggesting you get elocution lessons and teeth whitening — that would be going too far …)

Hands 5.17 Keep your hands still. You can gesture, and you should definitely use appropriate gestures to emphasise points during your moot. Overuse of emphatic gesture, however, tends to dilute the effect. Use gesture tactically. And the rest of the time do not distract with unnecessary hand movement. It can be one of the most distracting features of a mooter. If you are someone who waves their hands about, then one of the purposes of your practice moot should be to learn to suppress this habit. Start this attempt by anchoring your hands securely to your podium and don’t let go. Once you have suppressed the unnecessary movement, start to insert deliberate and planned movement into your moot.

It is probably worth having someone on the bench tell you each time you are engaged in a bad habit — it’s not much use if you are told once in feedback at the end of a practice moot that ‘you were waving your hands a lot still!’ Instead, have someone make a sign ‘HANDS’ and, each time you are engaged in your distracting behavior, they can show the sign (I once had someone whose elbows went in and out like a chicken flapping; judges were instructed to hold up a plastic chicken each time she did this in practices. She eventually got over it!). [page 73] It would not hurt any mooter to get a book or video from your library, on body language, and learn at least the basics of how people react to different gestures and facial expressions. It may seem artificial to actually practice these things — and since you know you are ‘putting them on’ it may feel that this is equally obvious to your judges. As with all things, though, practice makes, if not perfect, then close to it. Practice your gestures in multiple moots and you will eventually find that they do appear to judges to be natural, and more importantly they do work. Good advocacy is not just about having a convincing argument — it is about convincing your judges, and a good deal of ‘communication’ is what you do with your voice, your face and your body. You have plenty of time to experiment with these things in practice moots, so make sure you do.

Time Management 5.18 One of the big challenges facing mooters is time management. And the main fear that many of you will probably have at one stage or another as you prepare is that you will not get through your material. If you have mooted in a competition before, you will know that you never get through all your material! So, a few tips on time management: Prioritise your material: Know which of your points you need to make and know which you can abandon or truncate. Ensure that in practice moots you develop strategies to get the essential points out. Be flexible enough to deal with a interventionist bench or a silent one:

You should have a ‘tiered script’. Even if it’s not a ‘script’ from which you are working, consider your material as a series of bullet point lists. There are major bullet points, sub points and sub-sub points. If you are lacking time, drop the third level; if you are really pressed, drop the second. As mentioned above, you must be in a position to cope with judges who say too much and judges who say virtually nothing. As noted above, there is a 5–8 minute difference in the amount of material you can get out in an average moot. That is to say, usually at least a third of your time is taken up with ‘discussion’ with the bench. If that discussion is not happening, you will have to expand your submissions to include all your second and third level points. Move on: You need to do your very best to move on when a judge is holding you up. Usually most judges will be polite enough to stop questioning you at some point rather than persist in an increasingly acrimonious challenge to your submissions. Most remember that this is an actual moot. Some, however, will not. Some moot judges get lost in the moment. Some get excited at the submissions and generally can’t help continuing a discussion. Some have simply to show you (and the others listening) how smart they are, and quite honestly some are simply bullies. So you need strategies to move on. Sometimes you may consider making a concession (see below for some discussion on submissions). In other words: [page 74] If you are not with us on that point, your Honour, our alternative submission is that …

Or, if the judge is an ignoramus and just doesn’t get it, but you can see the other judges do (or hope they do): Your Honour, I see you are not with us on that point. Nonetheless, we also submit that …

Or, when desperate: Your Honour, I see you are not with us on that point. I do not think I am in a position to assist you further at this point. In the interests of time I would refer the bench to our other arguments in support of this submission at pages 26–28 of our written memorials, and I shall move quickly to our fourth submission …

Compensate for failure: One of the things judges will be looking for is whether you have managed your time well. They will have noted at the beginning of your presentation how many submissions you intend to make,

and they will cross-check this at the end against how many submission you have made. If you have said you are going to make three and have only made one, you will be penalised. You therefore need to do what you can to compensate for your failure to manage your time (remember, if it was the bench that was the real cause of this, it may matter less). You could cut short your second submission (see above) in order to give a quick summary of your final third summary, or, if you really have no time, perhaps you could refer the bench to your written submissions: Your Honours, I see my time is very short … in relation to our third submission I refer you to our written memorials at pages 23–30 and I shall now move quickly to conclude …

You should then quickly begin your conclusion to preclude the judges beginning to question you on that third submission. This is a less than satisfactory way to finish, but it is better to finish with your strong conclusion than it would be to finish in the middle of a question you will never really have the time to answer anyway. Or perhaps your argument is an argument in the alternative and the judges need to be reminded of this. This sometimes deflates a judge who thinks they have bettered you on a particular point: Your Honour, it may well be that you are against us on this argument. But the appellant needs only to win on any one of our three arguments for the respondent to be found not to have standing … [in other words, ‘You may have got me on this, but I win on the other two. Game over’].

The last minute (or two): Among your most important times before your judges is your first minute on your feet and your last minute. First impressions count and so do last ones. You should try to keep your last minute or two to summarise your case. Probably during your submissions you have dealt in a detailed manner with the minutiae of authority relating to your case, to interesting discussions of the relevance of obscure facts and how they may affect your submissions, and other possibly irrelevant ephemera. What [page 75] you want to try to do in the last minute is to bring the court back to the big picture. What is this case really about? What are the real issues involved in the case? And by this, I do not necessarily mean the real ‘legal issues’ but the

wider legal principles at issue and the policy involved in the case. Is this a torts case and an individual has been rendered paraplegic for life? Don’t speed up! One mistake many mooters make is to try and finish off all of their submissions in the last minute of their moot, by speeding up to two or three times the speed they have maintained for the rest of their moot. This is a bad way to finish, because it is a manifest indication of the fact that you have not completed your submissions. It is a bad way to finish because it shows you are panicking. It is a bad way of finishing because you must think you have not won your case yet. Otherwise, why would you be so desperate to get your fifth and sixth points out? The first five were not enough to convince the judges? In other words, if you finish without having presented your final submissions, you must act as if you planned it that way. Nine times out of ten, judges do not know you have made a mistake unless you give them a non-verbal clue that you have done so. What a judge will remember of your last two minutes is not what you said in them, but the fact you started to go really fast. So don’t.

Voice 5.19 An advocate’s major tool is her or his voice. If you are aspiring to practice at the bar, remind yourself of this fact on a regular basis, because it is a remarkably under-emphasised fact. Even most good advocates simply ‘speak in their normal voices’ when before a court. This is a lost opportunity for an advocate, since the voice — as well as its content, language — is the most remarkably complex, and powerful, tool we have as human beings. Although it is said that the pen is mightier than the sword, it has been the voice that throughout most of recorded civilisation has changed history more than written script. There has been much written about the voice and how to use it, but below are some very basic tips for you to keep in mind as you practice your moot. Volume: Most mooters begin speaking too softly. When they are coaxed to an appropriate volume, they claim they feel silly because they sound (to themselves) like they are yelling. Despite assurances from the bench that they actually sound much stronger and more confident that previously, it is still difficult for them to adapt to this ‘appropriate’ loud volume. Remember that when your first judge tells you to speak up. You need to learn to project your

voice. Learn to speak by forcing your diaphragm to push the volume through your chest rather than just speaking from your mouth. Go look up a book that teaches singing or voice projection techniques. If it does not make sense to you, and you can’t find someone to explain it to you, experiment yourself. For a start, place your hands just under your ribs and speak as you usually do. You will probably feel very little movement. Now take a deep [page 76] breath, and use the muscles under your ribs to push the air out of your mouth as you vocalise. Not only should you feel your diaphragm move but the sound will come from ‘deeper’ in your mouth — it should feel like it is coming from further back in your mouth, rather than closer to the front which is what it will usually feel like. You will find that this method of speaking will give you more control of the volume and pitch of your voice than when you just ‘mouth speak’. You may also find that you become a little dizzy at first speaking like this for more than a short time, but it is worth persisting with. If you find you are ever accused of speaking too softly and told you have to speak up, use this method the next time you present before the same judge and speak in a voice that sounds just a little unnaturally loud for you and do not be surprised at the positive feedback you get. Tone and rhythm: Often an advocate will have rather a monotonous tone when presenting their submission. This may either amount to a ‘drone’ or sometimes a sing-song sort of intonation which, if reduced to a diagram, would appear as a regular wave pattern. Either of these, or their variants, may put your judges to sleep or, at the very least, result in their attention wandering. From the outset, you should be aware of how you modulate your voice. You should consider where in your submissions you wish to place emphasis — and this should be a deliberate, tactical decision. You need to consider where to slow down, and where to insert pauses (see below). You may even consider altering the volume or the speed or the pitch of your voice, as a deliberate strategy to get the judges’ attention. Listeners are naturally drawn to changes in what they are hearing. If you dramatically slow down at a certain point, judges who were previously distracted will be drawn

by the change and will re-focus their attention on you. Modulating the rhythm can have a similar effect and emphasise the point you are attempting to make (emphasised words in italics): Your Honours, the appellant … is … not … guilty [pause] because there is no way he could … have … been … present [pause] at the crime scene [pause] at the time of the murder.

When such a sentence, with an interrupted rhythm and deliberately emphasised words, is inserted into an otherwise flowing presentation, it makes judges ‘sit up and pay attention’. In short, listen to the way you use your voice, and experiment with it in front of judges. Try out different speeds, different places to put emphasis, and different rhythm to see what elicits a positive response. Emotion: Although you do not want to be overly emotional in presenting your submissions, remember that a person who is passionate and convinced about their arguments will appear to those who are listening to be so. A person who does not themselves sound convinced by their argument is less likely to convince someone else. You do not want to sound ‘emotional’ during your case, but you do want to sound confident, committed to your [page 77] client’s case, and passionate (in a somewhat conservative and restrained way) at your client’s predicament. Pause: Do not fear the pause. Silence can be a powerful weapon for the advocate, especially since silence in a conversation will usually make people nervous and prompt the participant to fill the gaps with babble. You should use the pause for a number of purposes. First, use it for emphasis. You want to let your submissions sink in. After making a particularly strong or pertinent point, you do not want to move immediately to your next submission. Instead, you want to pause, look each of the judges in the eye and wait a few seconds. The pause and the eye contact are themselves nonverbal prompts that let your listener know you are meaning to emphasise that point — ‘This is important, you understand?’ The pause can be used this way not only at the end of sentences but within them. Think about a string of words you are using to make a point, for instance that the victim of a crime

was a happy person: Ms Smith was young, she was described by her friends as ‘vibrant’, as ‘outgoing’, as ‘happy-golucky’, as ‘full-of-life’, as having ‘a fantastic future ahead of her’. Now she is dead.

Say this sentence without pauses at each of the commas and the full stop, then say it again with significant pauses at the commas and stops. You will see that the pauses add significant emphasis to the statement and would be even more dramatic if you turned from judge to judge at each pause and stared them in the eye. Experiment with using the pause in this way during your practices. The pause is a sign you are in command of your submissions. Someone who is not will rush through their submissions without pauses. A slow and steady presentation with significant ‘spaces’ within your submissions shows you are in control of your time as well as your content. Finally, pauses are good ways to signpost. If you finish one submission and move straight to your next, you will often lose your judges — they may not realise until a sentence or two into your new submission that you have moved on. Instead, conclude you submission, pause for two seconds as you maintain your eye contact with the last judge you were speaking to, look down at your notes (even though you probably — hopefully — don’t need to), then look up again and launch into your next submission. This will save you from having to use the artificial ‘moving now to my next submission’ too often.

Other Oral Advocacy Skills 5.20 In addition to your ‘performance skills’ outlined above, the structure of your advocacy can be more or less effective. Below are some suggestions for structuring your content in a more effective way.

Framing Your Case — The Case Theory 5.21 I have suggested that, where possible, you should identify what the ‘core issue’ is in your case. If it is a constitutional law case, does it really boil [page 78]

down to a States’ rights issue? If a torts case, is it really about the extent of personal responsibility? If an international law case, does it, at the end of the day, really amount to a revisiting of the old question of how much human rights should trump state sovereignty? If you are able to reduce your case to one central simple question, this will certainly make it easier for judges to understand, and it will make it easier for you to paint them the picture of what happened and what they should do. This process also plays another important role: it helps you to anchor each of your submissions, and helps to remind you of your own case. If you are able to reduce your case to one central question, you should ensure that you link each of your major submissions back to this question. How should this particular submission be resolved in order to resolve that wider question of legal principle or policy in the appropriate way? If you are the respondent, and the applicant or appellant has been successful in framing a case theory that is inimical to your case, you must attempt to reframe the case theory for the judges. If this is necessary, it is often appropriate to do this bluntly and up-front: Your Honours, the appellants have suggested that this case is really about States’ rights. In fact, it is about something much more important than the ongoing struggle for power between the Commonwealth and the States: it is about the rights of individuals — of people, your Honours — to that most very basic necessity of life, the right to water.

If this were a case about whether the Commonwealth had the right to pass laws regulating access to river water in the Murray Darling system, for example, then it would indeed be about ‘State’s rights’, but here, as respondent, you have reframed it in such a way that does not deny that, but refocuses the judges’ attention onto something else. If you were representing the Commonwealth, you will have placed yourself in a strong position to make an argument that your client is the only party to be able to make an efficient and fair arrangement for all the parties involved. More importantly, however, you have engaged in an exercise of taking the high ground: you are not arguing a technical, political — and somewhat theoretical — question of State versus Commonwealth powers, but you have reframed the issue in such a way that you are now defending the people. If you are able to reframe in this way, and the judges accept your reframing, you have undermined your opponents who may have made arguments based on a black-letter reading of constitutional jurisprudence

relating to the issue of States’ rights: it’s not simply about that anymore.

Identifying the Issues — Limiting a Judge’s Thinking 5.22 So, you need to get into the judge’s mind a ‘central’ issue. But then you also need to identify early on for the judge what issues they are to resolve in the case. Again, you can be quite explicit in doing this: Your Honours, there are three issues you need to resolve today: first, whether the respondent has standing to bring this case. Second, if so, whether the

[page 79] Commonwealth may invoke the nationhood power in order to pass the Murray River Regulation Act; and, third, whether the Commonwealth may use the Foreign Affairs power to pass the Act.

Here you have made it quite clear to the judges what the issues are. The main purposes of this exercise is not only to set out a clear ‘map’ of the case for your judges, but to limit the amount that they have to think. If they need to try to figure out for themselves what the issues are, you not only face the danger of them coming to a different conclusion of the issues in the case to you, but also they have to spend time trying to make this determination. This is time they are not listening to you. An even better way of phrasing the above paragraph — which will help the judges think even less — is to include your position in each of the issues: Your Honours, there are three issues you need to resolve today: first, whether the respondent has standing to bring this case. Our first submission is that it does. Second, if the court has jurisdiction, whether the Commonwealth may invoke the nationhood power in order to pass the Murray River Regulation Act. Our submission is that it does. And third, whether the Commonwealth may use the Foreign Affairs power to pass the Act. Our third submission is that this power also supports the Act.

If you are able to use phrasing like this, you preclude judges questioning you as to your position early on. You should attempt to utilise this technique throughout your submissions. Do not launch into a long theoretical question about the law or a factual situation without first telling your judges why you are about to do so. You do not want your judges sitting on the bench pondering ‘Why are we discussing this? What is its relevance?’ Always tell them the relevance of what you are saying first, then get into the detail and complexity.

Getting to the Core of the Issues 5.23 Even with your difficult submissions, and even if you think you can’t win them, cut to the essential problem or issue as quickly as possible. Do not try to meander around it. Your job as an advocate is to assist the court to make a judgment, according to law, that provides justice to all the parties involved in the litigation (even though some may not like the outcome). Your job is not, therefore, to try to hide or ‘paper over’ difficult issues, but get to them as quickly as possible and then to deal with them for the court (and hopefully in your client’s favour). Judges will know if you are being evasive or trying to avoid dealing head on with an authority that is a difficulty for your case. Remember that in a real court, as an advocate, you would never approach your case like this. First, if it is in a lower court, you are simply setting your client up for an appeal which will correct the error brought on by your evasion (and mean their costs are increased) and, importantly, you will lose your judges’ trust. This is the very last thing an advocate wants. You want your judges to feel you are honest and open with them — that you are in fact trying your best to assist them in doing their job — coming to the right [page 80] (or at least preferable) decision. If they feel you are less than honest, they will not only scrutinise all of your arguments extra carefully, but they will be personally disposed against you. Remember that you are, first and foremost, an officer of the court. Remember also: this is a moot. You cannot win every point because the problem has been constructed to give you some strong points and your opponents some strong points. Judges will appreciate that you recognise this, and you will have more time to spend on your strong points if you cut to the chase on your weak points and dispose of them quickly.

Make the Judge Want to Find for You 5.24 In his recent book,1 Nobel Prize winning economist and psychologist Daniel Kahneman posited that there are two types of thinking that humans engage in: one predominately intuitive, quick and connected to our limbic

systems (that he refers to as ‘System 1’), and the other slower, logical and deliberative (‘System 2’). The first makes quick intuitive decisions (‘gut decisions’) and the second is the one you use when you might think through a complicated, complex question in a logical way. Even though your judges are (hopefully) evaluating your submissions with the second system, do not doubt that they are also making judgments about your arguments with the first system. Those judges who are more expert in the area are probably making an initial very rapid evaluation of your case to see whether it ‘sounds right’ to them. They are not evaluating it logically and dispassionately — that will come later. If you lose the judges on their initial System 1 evaluation of your submissions — which they will probably come to in the first few minutes — you are going to have a harder time ‘winning them back’ with your logic that appeals to their System 2 thinking. In other words, you may be right with your law, but you also want to give the judges a reason to find for you. This does not mean, as pointed out above, that you need to make an overly emotive appeal to them, but you certainly cannot present a set of submissions that they are going to viscerally reject. This may also mean you need to show empathy at the right places in your moot. For instance, if you are in an international law moot and your client state has been accused of committing nasty acts against its own citizens, you certainly want to make the argument (should it be available) that it is no-one else’s business, but you also want to show some empathy with the suffering of anyone who has been injured or killed by your client. You need to therefore be sensitive to what might be a sensitive issue for your judges. Many issues in moots will be contentious — they are designed like that. So, in the constitutional law moot example given above, remember that you may have some judges on the bench who are pro States’ rights and others who favour Commonwealth powers. If you are representing the [page 81] Commonwealth, the States’ rights supporters will from the outset be ‘looking for a way’ to find against you. You must not only have an iron-clad case to convince them otherwise, but you need to find a way to assuage a possibly guilty conscience on their part. Perhaps you can imply sympathy to a States’

rights position, but this is one of the rare exceptions where even sensible States’ rights supporters see the wisdom in the Commonwealth needing the power to deal with this issue. Or perhaps you can find an analogy in the early federation debates that allows you to make an argument that even the founding fathers would have given this power if they’d anticipated the problem. Whatever your approach, give your judges reasons not only to agree with your legal arguments but also feel comfortable with finding for you.

Humour 5.25 If you can deploy humour well, do so. If you are not sure of your jokes or witticisms, my suggestion is not to try it. Certainly if you are going to try, try out your jokes on some practice judges first and don’t try your new witticism for the first time in a real moot.

Respondent 5.26 I am addressing respondent first before appellant (or applicant) for a very good reason. That is, to some extent, if they manage it well, the respondent team is in a stronger position to do well (all other things being equal) than their opponents because effectively they have a full 40 minutes (or however long their side has to moot) to rebut their opponents. By the time you have risen to moot, you have heard your opponent’s case. You know which of the arguments they had in their written memorials but that they have now dropped. You have heard the strength of their submissions as they have been tested by the bench. Now you have your own 40 minutes to demolish them. For as much of your moot as possible, you should try to not only put your case, but put to the judges why your submissions are to be preferred to those of your opponents. You have 40 minutes to show in detail how they got it wrong. If you are in a moot that has rebuttal, they probably will have no more than at most three minutes to do the same thing to you … make the most of it.

Applicant and Appellant 5.27 Because the appellant has not had the opportunity to hear their opponents in detail, they must as much as possible anticipate what the case against them will be. If you are the appellant and have your opponent’s

memorials, you are in a good position to do this, but it may well be that they will tweak their arguments — and strengthen them — from their written memorials. They may also abandon arguments or not get to them. Some moots allow teams to make entirely new arguments to those included in written submissions, so you may be going into a moot having no idea what your opponent’s arguments will be. [page 82] In such a case, and in any case, you should try to anticipate what the respondent’s strongest case is and ‘pre-rebut’ their case during your submissions. You can do this directly, by using phrases such as: Your Honour, the respondents might argue that … however … Your Honour, the respondents in their memorials have relied upon the case of … However, this case is not good authority for the principle that … Your Honour, the respondent’s strongest argument on this issue is that … However, this should not be the preferred position of this court because …

Be careful when adopting this approach, because, if you miss the target and suggest that the strongest argument is ‘X’ and the respondents then get up and point out that their strongest argument is in fact Y (and in fact Y is a very strong argument), you run the risk of looking silly. But deploy the strategy well and you have shown the bench that you have not only thoroughly prepared your own case well, but have done a good job in meeting your opponent’s case before they have even risen to argue.

Jurisdictional Arguments 5.28 Many moot problems require teams to deal with jurisdictional problems before moving onto the substance of their arguments. If this is the case, my main tip would be — don’t spend too long on this! Although you may have a strong case for winning on the jurisdictional issue, remember that you are in a moot. There is no way the judges are going to find they don’t have jurisdiction and refuse to hear the rest of the case. You want to make a confident and strong stand on jurisdiction and move on to your other submissions as quickly as possible — after all, they are probably much more interesting than mere jurisdictional issues and the

judges themselves will be keen to move on to the meat of the moot.

Strong and Weak Arguments, Inconsistencies, Alternate Arguments 5.29 Know your strong arguments and your weak ones. Lead with your strongest arguments and leave your weakest until last. Point out clearly when your arguments are alternate arguments. Ensure you have no inconsistent arguments, especially between your two mooters: you do not want your junior counsel proposing an argument that directly contradicts his or her senior’s. Be prepared to admit when your arguments are not strong, or when the authority that supports your position is weak or thin. When you have a lot of authority against you, be prepared to distinguish it as best you can, but move on if it is turning out that your position is indefensible.

Concessions 5.30 Where necessary, be prepared to concede points — but only if it is not fatal to your case. For instance, if in your written submissions you have [page 83] proposed three alternate reasons why the Commonwealth has power to pass the Murray Water Regulation Act, and one of them is weak and the others strong, you would lead with your two strongest arguments. Having finished them, you may still have some time left and a judge may ask you ‘What of your third submission relying on the nationhood power, counsel?’ It is unlikely you will lose points if you calmly respond: We no longer rely upon that submission, your Honour. We submit that both the navigation power and the foreign affairs power are sufficient to support the Act …

then move on to your conclusion. This may be a far better way of finishing than being forced to defend a weak submission (and failing) as the last thing the judges see. Better for you to go out on a high of winning a strong submission. If you are going to concede, however, do not do it too many times. Twice

in a moot is probably enough. If you have started to make a submission, even if not a particularly strong one, do not concede it too quickly. This will look weak — judges will think, ‘If you were going to concede so quickly because it was so weak, why did you bother bringing it up in the first place?’ Finally, if you are conceding a point, always explain to the judge why your concession does not matter to your case. The example above is a good one — you have explained that you can concede on this because you only need to win on one of your three submissions to win the point, and you have already done a good job defending two of them.

Orders 5.31 Always be prepared to tell the court what orders you are seeking from them. It is no point winning your case if you don’t know why you want to win it! Your moot is not meant to be an academic exercise — all the litigants want something — so know what it is. You should also be able to explain why the court can make the orders you seek. Where does its power to make those particular orders come from? Is it in the court’s statute? Or is it part of the inherent jurisdiction of the court? If the latter, what is your authority for that? If it is a controversial order that you seek, has the court made similar orders before?

Responding to Questions 5.32 I had originally titled this section ‘Answering Questions’. However, this is not a sufficient way to describe what a mooter should be doing when they respond to a judge’s question. You should not think that a judge is simply asking a question in order to elicit information. This is just one reason why a judge may be asking a question. You should answer different questions in different ways, depending on why a judge is asking you a question. And this [page 84] requires you, when you are asked a question, to ask yourself why the judge is asking it. You must attempt to discern the judge’s underlying motivation for

asking a question, because you do not only want to give an ‘answer’ but also address that motivation.

Types of Question 5.33 The types of question that you may be asked can be grouped into several categories. As noted above, you need to attempt to determine why the judge is asking a question, and to craft your response, not only to simply answer the question, but also to address the judge’s real and underlying concern. Requests for genuine clarifications: Many judges will not be conversant with the facts, and will simply want to have their lack of clarity satisfied. This will often occur in relation to the facts of the case. If you perceive the question is of this sort, answer it as succinctly and quickly as possible. Questions to test basic knowledge: These sorts of questions will be asked especially by those judges who may have some knowledge of the general area of law in which the moot is based, but not an in-depth knowledge of the particular legal issues addressed in the moot. You should be able to nail these questions quickly and succinctly. They are not trick questions, but, if you answer them incorrectly or can’t answer them at all, you are certainly going to look bad. Questions to test the limits of your knowledge: The usual process for many judges is to question you a little and then push you a little more, to elicit your depth of knowledge in relation to a particular issue. They might start by asking what year a case that you are relying on as authority was heard in. If you answer this correctly, they might ask what the facts were in the case. Then they might ask you which judges heard the case. Then they might ask you some particular detail about the case. Whether you get the next question relies upon you providing a correct answer to each question preceding. The questioning will stop when you are forced to admit you don’t know the answer or there are no more questions to ask! In order to deal with this type of questioning, you should prepare as if you are preparing for a quiz show. Of course, you should know as much as possible about your ‘special topic’ — and this includes anything connected to the authority you are relying on in your moot. But you should also seek to inform yourself as much as possible about issues connected with and peripheral to your moot.

If your moot is an international law moot and you are relying on the Nicaragua case, you should also know a little about the circumstances of the conflict in Nicaragua. Who were the Sandanistas? Who were the Contra rebels? Why was there a conflict? If your moot involves discussion of the death penalty, which countries around the world still impose the death penalty? For what sort of crimes? A good general knowledge stretches out [page 85] from the facts of your moot like a web — the more you know about things generally, as well as in depth, the readier you will be to answer these sorts of questions. Questions to resolve confusion: Sometimes your submissions may confuse a judge. Sometimes they have misread the facts. Or sometimes they are confused for other reasons. Particularly if you get a question the answer to which seems to you to be obvious, it’s probably because the judge has made a mistake about something. So don’t just answer the question; attempt to determine the source of the confusion, and to give your answer some context to clarify for the judge what you think their (oftentimes unstated) issue is. Questions to state a position of disagreement: Judges will often present their disagreement with your submissions as a question. If this is the case, you need to both answer the question and address the disagreement. So, do not answer the following question as follows: Judge: So you are telling me that despite the fact that the state of X has cracked down on protests by killing 500 of its own citizens, the neighboring state cannot intervene to save potentially hundreds more lives? Counsel: That is correct, your Excellency.

This won’t do. Clearly your judge does not like the fact that all those innocent people are dying, and is uncomfortable with allowing the principle of state sovereignty to overrule all possible interference by other states in cases like yours. And a simple ‘that is correct’, although it might answer the question, will not answer the judge’s real concerns. So, understand the real concern of the judge and address it: Counsel: That is correct, your Excellency. Although the deaths in this case are a tragedy, and although the security services could possibly have handled the situation very differently, the

principle of sovereignty is so important to international law that the law — and this court — sets a very much higher bar before it even begins to consider that interference in cases like this by another state is permitted. This case simply does not meet the threshold that is required. I would refer your Excellency to the case of XYZ where this court found, in a similar situation, that even where the number of dead was ten times as high, intervention was not lawful …

In this way, you addressed the judge’s real concern (the death of innocent people) and have given them a reason why they can be, if not happy, then at least willing to find for you. Because the law says they have to. ‘Trick’ questions: Sometimes, of course, a judge will ask you a question to try to trip you up. Don’t think that all judges’ questions are just to seek an answer. On many occasions a judge will put a proposition to you that is simply incorrect to see whether you lack the courage of your submissions, and will simply agree. Although the judge is the judge, she or he is not always correct, and if an incorrect proposition is put to you, or a question that seems to be misleading is asked, firmly but politely correct the judge, or guide them back to the right path. [page 86] Disruption questions: Sometimes, also, a judge will simply ask you a question to throw you off your submission. It might be a random question that has nothing to do with your submissions or it may even be a little odd. If this is the case, again, with politeness but firmness, answer the question and return calmly to your submissions. Don’t lose your place or get flustered. Questions to push you: This is a variation of the ‘questions to test the limits of your knowledge’ above. Generally, though, there is an element of testing your performance under pressure in this sort of question — it is not just to test your knowledge, but how well you perform under pressure. Perhaps you are defending a submission that seems to be weak. The judge might decide to push you to see whether she or he can make you concede — or to see how far you are willing to go, and to what lengths, to defend your submission. Or perhaps your time is short and the judge is asking questions just to see if you perform well under time pressure — they are not really interested in the answers. In these instances, you will need to utilise the appropriate technique to deal with the judge — and in some instances you will really need to be quite firm

in order to ‘shut them down.’ Again, you must be polite, but also remember that your submissions are your own. If you think that a judge is simply pressing you to test you in this manner, refer them to your written submission, politely tell them that you are not to able to assist them any further, or perhaps use the slightly pretentious sounding: Your Honour, I cannot put that point any higher than I have. I will perhaps, in that case, move to my next submission …

Questions for the judge’s sake: Your judges are human. And we all know our common man (and woman) comes in all different types. Sometimes they are bullies and they simply like to make young students squirm. Sometimes (although these are few, thankfully) they will actually try to humiliate or embarrass a mooter. Sometimes they need to ask a question to show you, and their fellow judges, how smart they are. Especially if there is a very senior judge on the bench (such as a High Court judge or a retired High Court judge), it will be the case that you will have a sycophantic lawyer who will need to try to impress the judge and will use their questions to try to do so. The senior judge has most certainly seen this before so they will not be taken in by such peacocking. They will, however, be impressed with you if you are able to deal with such behaviour with grace and aplomb. Whatever you do, do not embarrass the show off, and tolerate the judge with the inferiority complex — you want them all to go to the judging room feeling good about themselves, and that you have assisted them in their job of adjudging the case.

Don’t Just Answer Questions! 5.34 In short, the last section could be summarised with the suggestion that you should never ‘just answer the question’. More than half the time the reason that prompted the question is discernable from the question, but [page 87] not on the face of the question itself. Ask yourself, ‘Why is the judge asking me that? What is their real concern?’ And, in your answer, address this real concern.

Just Answer Questions!

5.35 A final word, however … when you are asked a question — just answer the question! Is this contradictory advice? Not at all. Remember that earlier I suggested that one of the things you should be aiming at is reducing the amount of unnecessary thinking a judge does. If a question can be answered with a ‘yes’ or a ‘no’, then give the judge a yes or a no and then go on to fill out the answer to address their real concern as I have suggested above. Too often a judge is waiting 30 seconds or a lot more into your answer to comprehend whether your answer is in fact a yes or a no. Don’t make them wait — but on the other hand, don’t just leave it at that. By all accounts don’t answer your question with a ‘Yes, your Honour’ as many wary mooters will do, afraid of disagreeing with a judge, when in fact you mean no. And don’t use the ambiguous ‘Certainly, your Honour!’ which could mean yes or no or neither. And do not tell the judge, ‘I see where you are coming from with that question, your Honour …’ It is good you see where they are coming from, but this is unnecessary verbiage that will just clutter up your answer. Again … a ‘yes’, or a ‘no’ and then an explanation of why is what is called for.

A Final Difficult Question — Who Should Moot? 5.36 One of the often vexing and fraught questions a moot team has to answer is which of their members should moot during the competition. Different institutions have different approaches to this question. Some will always put their best team forward — and if that means that there are two mooters who are clearly stronger than the others, then these two will probably moot both sides during the competition. Some will want to ‘give everyone a go’. The choice is up to the team or the university, or both. Clearly there are advantages to having more mooters. If you have a team of four, and two are acting for the appellant and two are acting for the respondent, this means that the mooters only have to ‘learn’ or memorise and practice half of what they would have to if only two mooters were mooting. In the latter situation, it is also often the case that, since the two are swapping back and forth continually, they sometimes forget which side they are mooting for — this is not going to be the case if there are two permanent respondents and two permanent applicants.

If you need to make this decision, you should also consider when you are going to make it. Mooters can improve a lot in the final week or so of preparation, so a premature decision will sometimes deprive the team of an excellent opportunity to put forward a strong mooter. Choosing earlier, [page 88] however, allows those who are going to moot to concentrate on the actual preparation. If there are going to be two, this will allow the two to begin to prepare properly for each side, or, if there are going to be three or four, this will allow each of those to begin to prepare the moot as they are going to deliver it. _______________________ 1.

Daniel Kahneman, Thinking Fast and Slow, Penguin Group, 2011.

[page 89]

6 C H A P T E R

The Moot! Before You Leave for the Competition — The Last Days On the Day Generally Planning Ahead — Future Moot Teams Good Luck! 6.1 This chapter is, perhaps surprisingly, one of the shorter chapters in the book. This is because you should have comprehensively prepared for your competition, and there is actually very little more you can do on the first day of your moot.

Before You Leave for the Competition — The Last Days 6.2 Probably (hopefully) in the weeks leading up to your moot you have practiced intensively. Hopefully two times a day at least. Towards the very

end, each practice moot should bring only a marginal improvement over your previous moot. Earlier moots should have led to a significant improvement from moot-to-moot, and by the time you get to your competition you should be pretty good. So on the last day or so before you leave, it might be a good idea to decrease your number of practices — you want to be relaxed at the beginning of your competition — not exhausted. [page 90]

What to Take with You 6.3 One of the things you will of course be doing in your final few days of preparation is packing. What should you take with you to your moot? Research: You will want to take your research, of course. The research does not stop until the competition is over. After each moot, as with after each practice moot, you will probably have new points you want to research. Try to reduce as much of your research as possible to electronic form. Although you might prefer reading on paper, you do not want to have to transport reams of paper and piles of books to your moot. Articles in electronic form, and scanned extracts from books are much easier to transport than their paper equivalent. Take as much as you reasonably can — even if you think you probably won’t use it. It is better to have too much rather than get to the competition and find you do not have that crucial article that is just on point for an argument that now appears to be more important than you previously thought. When you can’t take electronic copies, probably consider erring on the side of caution and do pack those few central text books. Clothes: For your moot you will be dressing in appropriate professional attire. Make sure you have a few extra shirts (and ties) just in case you spill that tomato sauce down your front at dinner on the first evening preceding the competition. Dry cleaning or cleaning can’t always be relied upon, so you will need to make contingency plans. On that point, consider packing an iron if you are mooting overseas —

especially if it is in a place like India or China. Not only do many hotels not provide an iron and ironing board in your room, but they may not have one in the hotel. Similarly, some hotels in India will provide an overnight ironing service, but you will be hard pressed to access an iron to do your shirts yourself. Stationary etc: Depending on where you are going, you may wish to stock up on a good store of stationary. You will probably be adjusting your script several times before you finish the competition, so you will need to reprint it (consider taking a portable printer), hole-punch it and put it in your moot folder. If you know you can easily obtain paper somewhere close to wherever you are staying for your moot, that’s fine — otherwise, take a ream or two with you (this also saves time). Although the host of the competition will probably make some photocopy and print facilities available to you, it may not be at a convenient place (ie distant from your accommodation) or at a convenient time (ie you may want to print out material early in the morning before your moot, or late at night after you have finished the latest lot of research. Therefore, taking your own printer is always helpful, and you will definitely want to have a laptop or two (or more) available. Laptops are crucial not only for rewriting submissions, but also for conducting research. As noted above, you have hopefully reduced as much [page 91] as possible of your research to electronic form, but you will also probably want to conduct a good deal of research online. Does your accommodation have internet facilities? If not, it will be of great assistance to have wireless internet access of your own. Copies of key documents: Ensure that you have multiple copies of the problem and of your memorials. It is rare, but sometimes possible, that the judges won’t have a copy of the problem, and the organisers have forgotten to put copies in the room, in which case it is a demonstration of your preparation that you are able to provide one to the bench. Memorials: Some competitions require you to provide multiple copies of

your memorials to the organisers. Usually these are sent to the organisers before the moot, but a few competitions require you to bring multiple copies to the competition itself. Check your competition rules to see if this is the case and make sure you bring your copies in the right format. Bench book: Some competitions require mooters to provide their judges with bench books (folders containing all of the authority upon which you rely, or at least with the relevant extracts from the cases and statutes upon which you rely). They also contain a copy of the problem and of your memoranda. They should be clearly tabbed so the judges can be quickly and efficiently taken to the relevant sections. Usually these tend to be quite large, so it is not practicable to prepare them at your moot — they need to be prepared beforehand. You should usually prepare four copies — one for each judge, and one for your own reference (you don’t need to provide one to your opponents). Remember after each moot to recover the bench books for your next moot. The bench book is left on the judges’ bench prior to them entering the room for the start of the moot.

On the Day Generally 6.4 So, after all the preparation, you are finally there. The first day of the competition and your first moot are just hours away. Moot schedule: Most competitions have you mooting four times over the space of two or three days (twice as appellant and twice as respondent). Usually these competitions will run three moots a day — one at 8 am or 9 am, one around lunch time, and one late in the afternoon. Depending on your draw, you may be mooting two moots in a row, or mooting once early and once late in the day. Be aware of this fact and ensure you plan to eat and rest appropriately across your competition days. There is no point in giving advice on how different people cope in different ways with early or late moots, but you should be aware of how you are likely to react, and plan accordingly. Weather: Be aware of the weather — should you be taking umbrellas or some other rain protection if the weather is bad or worsens during the day?

[page 92] It is going to erode your confidence if you turn up to your moot soaking wet — so prepare! Prior check of the venue: Where possible you should try to check out your venue prior to the competition. Some moots will be held in large professional moot courts and some in small cramped classrooms with the two sides crammed closely together — it will help your preparation if you are aware of what you will face beforehand. Podiums: Also be aware that different venues will provide you with different podiums from which you will present your submissions. Some may be smaller, some bigger, some more vertical, others more horizontal. This will impact on how your folder sits during the moot. Some mooters are nonplussed to find that, having practiced with ease managing their papers back at their university with a podium that is just right, they find one from which their folders are continually on the verge of falling. Again, it helps if you are able to look at your venue beforehand — preparing for even these small things helps on the day. Nerves: You will probably be nervous. You need to develop strategies to deal with this, if possible, well before your moot. You should remind yourself how well prepared you are at this stage, and, in fact, it will almost definitely be easier than you thought it would be. Just do it! Substitution and strategic team practice: Some teams, who have more than one member ready to moot any given side, sometimes engage in a process of ‘strategic team construction’. That is, they will mix and match team members depending on who their opponents are. There is a generally accepted wisdom that fielding a team of one male and one female is ideal, but fielding a team of two males against two females is not. If a team engaging in this strategy sees their opponents are two males, they may chose to put forward a team of two females (on the premise they are more empathetic and are likely to get the judges onside quicker than the more ‘aggressive’ male team). I have no idea whether there is any truth in these theories. I have certainly never walked away from a moot thinking ‘we lost that one because our

gender mix was all wrong!’ Personal presentation: Your mooters or other team members should do a quick final check, first before you leave your rooms for the moot (do you have everything you need?) and also in the moot room before your judges come in. If you ate something quickly on the way to the moot, do you have spinach in your teeth? When you put your jacket on, have you messed up your shirt collar? Is your partner’s tie straight? Is your hair neat? You can’t necessarily see these little flaws on yourself, but your partner or someone else can. Meeting and greeting your opponents: If you would prefer to spend time alone prior to your moot to calm your nerves, away from your team members and away from your opponents — do so. You should not feel [page 93] pressured to greet and chat prior to your moot if that is not the best way for you to get yourself ready. If you are ready to go and are the gregarious sort, on the other hand, feel free to say hello and chat. Many teams do. Although you are required to maintain your anonymity with all your judges, almost all competitions will allow you to communicate where you are from to your opponents. Some teams prefer not to, but no real advantage is gained by knowing or not knowing from where your opponents originate. Your timekeeper: All moots will usually provide a timekeeper. Often they are not well instructed and may not have undertaken the task before. Be aware that you may only get a very brief flash of your time-signs from such a timekeeper. This may be exacerbated by the placement of your timekeeper — they may be in a position where it is difficult for you to see them. Some timekeepers may also not indicate, or indicate well, time-signs to your judges. This may mean that your judges are not aware that your time is running out. Perhaps if they were, they would sometimes question less towards the end of your submissions. There is nothing you can do about it if this does happen, so be aware that it might, and don’t get flustered if it does! The room, temperature, distractions and other irritations: From Chapter 5 you will remember my advice to be aware of your room. Some

rooms are bigger, some smaller, some have good acoustics, some poor. You will need to adjust yourself and your voice accordingly. Some rooms have poor air conditioning, and some unfortunately none, so you may find yourself very cold or very hot. Again, there is nothing you can do about it except be pre-warned. In some moots you may find yourself with unexpected distractions. I have seen moots where mooters have had to cope with construction noise, with pigeons wandering in the window at the back, with leaf blowers outside open windows, and one where the toilets next door were being pumped out throughout most of the moot. There is one moot court where the male toilets are directly behind the court and the sound of the electric hand dryer can be particularly distracting for mooters! Whatever happens, stay calm, adjust your presentation as required, and soldier on. Anonymity: Remember at all times to maintain your anonymity. Sometimes judges will know where you are from (from no fault of your own). Even if they indicate this, you can feel comfortable explaining that you can neither confirm nor deny their knowledge as you have been very firmly told by the organisers that to do so would be a breach of the rules. Silent benches, interventionist benches: This has been mentioned in Chapter 5. Be prepared for some benches where you get a lot of questions and some where you get almost none. This can be disconcerting if, for instance, your first two moots are one of each sort. Be prepared for this to happen. A bad moot: Sometimes you may have a bad moot. Or a moot that you think was bad. Perhaps you got confused, forgot your lines or something else [page 94] untoward happened. Perhaps your judges clearly knew nothing about the law (or so it seemed) and you think they clearly, but erroneously, favoured your opponents as a result. This will probably happen to you. It is not the end of the world, and, even if it is, you should still do your best for the remainder of your moots. The only time you do know how well you have done in a moot is when you are told you have won or lost, or you are provided (usually after

the competition) with the scores. It is quite possible you are wrong about what the judges think. I have seen this happen many times (both in my team’s favour and against them) — where after a moot the team is sure they have won or lost, but find out later that they had misread their judges. Remember also that, even if you lost a moot because your judges were idiots, other teams will also have idiot judges — the same or different. Usually during a four-round competition these things generally tend to even themselves out. Even if they don’t — there’s always the next competition!

Planning Ahead — Future Moot Teams 6.5 Think ahead to how you can help the next team from your university that competes in this competition. Take notes of what sort of questions are asked … take photos of the rooms … whatever you think might be useful. You will have many thoughts during your competition that ‘I have to remember this to tell the next team’. If you don’t record them somehow, you’ll forget half of them. Don’t underestimate how useful having a history of competing in a competition can be. It really does get easier for teams the second, third and subsequent times their institution competes.

Good Luck! 6.6 Finally, remember this. No matter how well you’ve prepared, no matter how well you know the law, no matter how great a performance you are about to put on — you always also need a bit of luck. The draw can be against you, you might happen to be up against a fantastic team from another institution that really is one of the best that has ever competed in the competition (if only you had been competing last year! Or next!) or one of a myriad of other things just might unexpectedly occur that means you will simply be unlucky. Maybe, yes, you should have won. But you just lacked that little bit of luck. Although this may be devastating at the time, you’ll feel better about it in a few weeks or months. Your achievement in competing the way you did will eventually mean any loss you suffer won’t matter anymore. Believe me.

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7 C H A P T E R

The University and Faculty The Benefits of Involvement in Mooting Cost, Expense and Resources Moots as Subjects Scheduling and Academic Pressures Strategic Involvement 7.1 This chapter is directed, first, at those university faculties that are not yet involved in mooting competitions, and second, those faculty members who have become involved in mooting for perhaps the first time, and are seeking to locate it in a broader institutional context.

The Benefits of Involvement in Mooting 7.2 There are a number of reasons why a university law faculty should consider investing in participation in mooting competitions. In fact, most law faculties in Australia already participate in at least a couple of competitions

on a regular basis. First, the moot competition is one of only a few law-centred ‘competitions’ available for participation in on a national (and international) scale. Although there are negotiation and client interviewing competitions, these are far rarer than moot competitions. This has allowed the moot competition to establish itself as the flagship of intervarsity competitions for law schools — there are few other forums where law schools can compete against each other head-tohead. [page 96] Given this is the case, no faculty will want to have its teams competing and consistently doing poorly, so how to maximise the gains from involvement for the faculty (and the university) is an issue. I discuss this further below. Participation in moot competitions is not only a benefit to the faculty and university, but also to the students involved. In order to land the job with a top-tier firm, or a sought after government department, or as a judge’s associate, law students need to ensure their CVs stand out from the competition. Not only do they need the high marks, but they also need to differentiate their experience from their peers. An involvement in moot competitions is a particularly useful way to achieve this end. As noted above, mooting is the main way that students can engage in competition with students from other institutions. A moot win, or award, is therefore an indication of an achievement not only within the student’s home institution, but against peers from other institutions across the country and across the world. Given that judges, senior partners of law firms and senior officers of government departments such as the Department of Foreign Affairs and Trade and the Attorney-General’s Department are likely to have been high-achieving competitive students themselves, there is a wide acknowledgement of mooting achievements among those who are going to be making hiring decisions. Students, on the whole, also find participation in mooting competitions highly fulfilling. The fact that they voluntarily take on what is usually a highly challenging task, work hard for a long time and usually see the fruits of their endeavours in the competition rounds is usually a source of pride and

satisfaction to the diligent mooter. The sense of achievement at having mastered an often complex area of law is one that mooters will come to experience more than the typical student in a law course. The outcome can also be satisfying for faculty members involved in supervision of a moot team. In a regular law course, with student numbers in the double or triple digits, the opportunity to engage intensively with students as they master the law is rare. In the intensity of advising and assisting a moot team, the opportunities to observe, participate in — and facilitate — student learning at a very intense level are abundant.

Cost, Expense and Resources 7.3 Participation in moot competitions attracts a cost. Not only are there actual monetary costs involved, but also administrative costs as well as other resource issues. Financial costs: The registration cost of most moots is not high. In general, most domestic moots have registration costs of under $500, and even most international moots will not have registration costs greater than this. Be aware that the Jessup moot has two registration fees — a domestic Australian fee along with an international fee. [page 97] Additional financial costs will depend upon where the moot is held. By far the largest cost incurred will be travel and accommodation. Some moots include the accommodation and meals in the registration cost (Gadens women’s moot (Sydney) and D M Harish International Law Moot (Mumbai) are two examples), but this is rare. In addition, the team will have to consider living costs while at the moot and any social functions associated with the moot. Usually there will be a formal presentation dinner associated with the competition, which may or may not be included in the registration fee (for instance, in the Shine torts moot it is included, but in the Jessup domestic moot it is extra). If financial resources are limited, a faculty may consider seeking outside funding for a team (some firms are willing to sponsor moot teams) and other

strategies such as sending smaller teams to a competition. At Bond, for instance, we send teams of two to some international competitions, even though the rules would permit us to send teams of twice the size or more. Administrative and other resource issues: Moot teams need time and space to prepare and practice. A team that is thoroughly engaged in their preparation will be spending dozens of hours a week in preparation. A dedicated room or other facility made available to them will greatly assist their capacity to spend that time in preparation. In addition, computer resources are invaluable (for electronic research as well as preparation of the written submissions) as is space for the students to actually practice their moot. If a faculty does not have a dedicated moot court, then another room where the students can practice with judges will also be necessary. Investment in a podium of some sort is really the bare minimum that is required, and the students can practice in a vacant classroom. Another issue that the faculty will need to take into account is the provision of things like printing capacity. A moot team, even in this supposedly wired age, will generate a great deal of paper. Although it may be possible to minimise the printing of articles and encourage on-screen reading, the written memorials will have to be printed multiple times for proofing. If students are typically charged for printing, then this can become onerous — especially since some written memorials can run to 50 pages each for the respondent and appellant. The very least a faculty can do is relieve the students of the cost of printing. This will not only include the printing of memorials for proofing, but also the final printing of memorials for submission — since some competition require the mailing of up to a dozen hard-copies of each memorial to the organisers prior to the commencement of the oral rounds. Academic support: This is discussed in more detail below, but is one of the major resources that will assist a team in their preparation. A faculty member who is expert in the area of the moot and has the time, and is willing to give it, to assist a team prepare is invaluable (note the rules on the limits of academic support discussed in Chapter 8). [page 98]

The amount of time that a faculty member is likely to spend in assisting a moot team is likely to be underestimated. In my experience it is very easy to dedicate significantly more time to assisting a moot team to prepare for a competition than it is to teach a regular core course. If, for instance, a practice moot takes approximately two hours (with feedback and discussion) and a team is practicing twice a day in the weeks leading up to a competition, a faculty adviser who regularly judges can easily spend more than 20 hours a week assisting. It is appropriate, therefore, that if a faculty is ‘serious’ about its involvement in mooting competitions, that the time spent by a moot coach be taken into account in the allocation of teaching hours in the semester where they are coaching. Most Australian moot competitions occur in university semester breaks (not useful for those institutions that have adopted the trimester system!) and therefore most advisers/coaches will be free of teaching at the time of the competition itself. If not, this is another factor that the faculty will have to consider in deciding whether to compete. Of course, many teams travel to moot competitions without a coach or academic adviser accompanying them, but it should be noted that it is certainly advantageous to have a coach attend. Where academic resources (ie faculty) are not available to assist students (either because the faculty lacks expertise in the area or because there are no faculty members with time resources they are willing to contribute), there may be the possibility of either student assistance or outside assistance. Students who have previously been a competitor in a moot make invaluable coaches for moot teams — and even if an academic adviser is available, the faculty should consider appointing a student coach in addition. Indeed, the appointment of a student coach, who is empowered to undertake many of the administrative arrangements necessary for a moot team’s preparation, may make the position of academic adviser more appealing. Students who have previously competed in a competition are almost invariably keen to continue their involvement. They are also (usually) aware of the shortcomings of their own preparation, so their advice to their successors is usually taken by the new team as valuable — often more than that of a faculty academic adviser! Library resources: Another major resource that team members will need

to be able to access is textbooks, articles, case law and legislation on their area of law. Most Australian law libraries are well-stocked (and well-wired) and able to cope with the provision of resources for most moots. However, resources for some more specialised moots may be harder to acquire. Specialised resources on particular topics of international law, or the intricacies of space law or maritime law, or intellectual property law in China, may well not be on hand and more difficult to source. It is advisable, therefore, to ensure the library is aware of the intention of the faculty to compete in a moot, and even consulted on such, before a commitment is made to a more specialised moot. [page 99] In addition to the provision of research resources, consideration might also be made to providing students with extended borrowing privileges. It is not convenient to have to re-borrow the same text five or six times — especially when it may not be in demand at all by other students.

Moots as Subjects 7.4 Many faculties provide the opportunity for students to take a moot as an elective subject — thereby enlarging the pool of students who are likely to apply to be a member of a moot team. Not all moots are appropriate for assignment for credit, but, where they are, allowing students to take a moot as a subject is always appreciated. It also lessens the pressure for students to take a reduced workload to spend more time on moot preparation. When deciding whether this is an appropriate course of action, there are, of course, a number of things to take into account. Assessment: How is a student’s participation to be assessed? Here are just some of the typical questions that arise. If performance in the oral component of the competition is to be assessed, what happens if not all students moot? Or a student does not moot in the competition because of illness or they have lost their voice (it does happen). For some competitions, the written memorials require a significant effort in

drafting, but in some others the written submissions are nothing more than a skeleton or outline. Should the written component in these latter competitions be supplemented with additional written requirements (which will not be popular with potential applicants for a position on a team)? How will contribution to the written memorials be assessed? This will depend upon how the memorials are prepared. If they are overwhelmingly collaborative, a group mark may be appropriate (but not necessarily reflective of individual input). If there is considerable individual work towards the drafting, as is usually the case where each student will prepare a different claim, will this individual work receive an individual mark, even where the different submissions may be of a different level of complexity? For most moots that are run for assessment, I have adopted a variation on the following assessment regime: Individual contribution to memorials — 20%; Group memorials — 20%; Practice moot 1 — 15%; Practice moot 2 — 25%; Law quiz — 5%; Facts quiz — 5%; Teamwork — 10%. [page 100] In relation to this scheme, I should make a few explanations: Although I have allocated 10% only for teamwork, when a student has made an exceptional contribution, the teamwork component has counted for more than 10% (in other words, the student may receive 15% rather than a maximum of 10% for this part of their contribution). The law quiz is not given in all moot competitions. It consists of 100 generic questions relating to the area of law that the student will more than possibly be asked during the moot. For instance, for international law, one of the questions might be ‘What are the sources of international law?’ — a typical question asked by a judge in an international law moot where the judge has not extensively prepared on the facts and is not particularly conversant on the particular areas of the moot’s law.

The facts quiz is given in all competitive moots. It will consist of a detailed questioning of each team member to ensure they know all and every fact of their moot’s problem and where to reference it in the moot materials. It is delivered as if the student is being questioned by a judge in a moot. For instance: Judge: Counsel, you said that Mr Smith was previously suffering from a psychiatric condition? Mooter: Yes, your Honour. He was diagnosed with depression three years prior to the incident in question. I refer your Honour to paragraph 26, on page four of the facts.

The facts quiz is something that the team themselves can prepare as part of their overall preparation for the moot. In conclusion, I should also note that moot team members generally seem to be more sensitive to variations in marks for moot team participation than students in other law courses. This is not surprising given their intense commitment and preparation. Almost invariably, if students are asked, even in private, what would be a fair mark for team members, they will insist that everyone should receive an identical mark (or the more humble will suggest that perhaps they should receive a 90% but their three team members should receive 91%!). Be prepared to defend variations here more than in other courses.

Scheduling and Academic Pressures 7.5 At my institution it is now recognised that students involved in moot competitions will receive flexibility when it comes to assessment. This has been more necessary at Bond University since it has a trimester system and key moot workload dates fall almost always during semester time. Therefore, faculty members are usually willing to allow extensions on assignments when, for instance, they fall due at the same time as memorials are due to be submitted, or will allow students to take deferred exams because the exam occurs the day after the student returns from their week-long moot. [page 101] This is a flexibility that should be supported by the faculty as a whole and its administration. A team will certainly perform more poorly if the students

have to abandon research or practicing at key times to manage assessment load. This will be the case in all universities, since preparation for moots can extend in some cases for more than five or six months.

Strategic Involvement 7.6 It would be impossible for a university to send teams to every mooting competition for which they were eligible to compete: There are simply too many of them. Therefore, a strategic choice will have to be made as to which competitions to enter. The choice will be dictated by financial resources available, the academic specialties of staff who may act as advisers or coaches, and the other resources (including the calibre and interests of the students themselves) available. There will also probably be some decision as to what moots the university is likely to perform better in. I know, for instance, that some universities have made a conscious decision not to compete in the Jessup competition — even though it is thought to be (by some) the most prestigious, because they do not consider they will ever perform particularly well in it — and will have a better chance in some other moots in progressing further. Other universities have decided not to be involved in that particular moot because their faculty does not have a particular international law specialty. Some faculties may decide that engagement in the space law moot or international arbitration moot would similarly simply not align with their faculty’s teaching or research profile. A final remark that I would make in this chapter is that, when making these strategic decisions, a university or faculty should consider, when committing to a certain competition, to do so for a number of years, at least. In my experience, the performance of my faculty’s team almost always improves after the first year, once the faculty or coach has had the opportunity to see how the competition is run, the timeline, and quite simply the ‘culture’ of the particular competition. A longer-term commitment also allows the student body to build up some expertise in the moot. One of the greatest resources a moot team can have is two previous generations of mooters from their moot to give them tips, to act

as practice judges, and simply to provide them with the encouragement that they are not the only ones to have made it through the experience!

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8 C H A P T E R

Academic Advisers and Coaches Team Selection Timelines Workload and Expectation Management How Much Help? When to Moot? Student Coaches Issues 8.1 I do not presume in this chapter to advise those of you, who have been doing this for longer than I, how to coach your teams. There are many moot coaches out there who have been successfully coaching moot teams for many years. However, if you have not coached before, or want some tips on some perhaps different strategies you might adopt to moot issues, then this chapter provides a few tips that I hope you will find useful. It will also be useful for those students who have minimal faculty assistance in their competition.

Those of you in this position, after all, will have to ‘coach yourselves’. This is at least some of what you need to know to do so successfully. As I have also noted before, some competition rules are quite strict as to what assistance moot coaches and academic advisers are allowed to give (more on this below, too). In the case where a coach must remain silent, perhaps this book can help plug the gaps. [page 103]

Team Selection 8.2 Getting the right team together is sometimes the most challenging of tasks for a faculty adviser. Many students come to competitive mooting with no prior mooting experience, and it is therefore often difficult to get an idea of their skill level prior to selection (quite simply, since many have not mooted before, they have no moot skills!). Of course, students also ‘sell’ themselves in order to be chosen on a team. You may also have a dearth of good applicants. The following suggestions are ones I have implemented, with generally good results. The application process: What will you seek to have applicants provide to you? A letter of application? A CV? Academic transcript? All of these things may provide clues as to a student’s suitability for a moot team. And what will you look for in these documents? The key aspects of a good mooter were outlined above in Chapter 2 — a willingness to work hard, a capacity to work as part of a team, the capacity to undertake effective legal research, the possession of excellent communication skills (both written and oral), patience, fortitude, an eye to detail, having time management skills and the capacity to work under pressure, a knowledge of legal research materials, a good knowledge of the law, a creative mind, as well as a competitive spirit and a good dose of resilience. Almost always, high marks are a good representation that a student has these, but high marks are not the only signpost. I would add to these characteristics a capacity to work unsupervised and in

a disciplined manner. These latter two are especially important if you wish to minimise the time spent in supervision. And generally speaking, although not always, the more intelligent the student, the better they will be able to undertake the rigorous task of moot preparation, and they will be in a better position to nimbly deal with judge’s questions. Where possible, design your application process to identify these characteristics in potential team members. In addition to seeking documentation from your applicants, some other methods of selecting a team are identified below, including try-out moots and interviews. A try-out moot: This can be a useful way to see whether the applicant has a natural flair for mooting. Although it is important to remember that a good debater or a good public speaker does not necessarily make a good mooter, some oral communication skills are crucial. You can knock any bad debating habits out of them later. Applicants for my teams are usually required to prepare a three-minute moot on a basic area of law — either torts or contract. This gives the selectors a basic idea of their confidence level and any natural capacity they may have for oral advocacy. It also provides some idea of how hard they are prepared to work on a team. The students who prepare hard for the try-out moot at least show that they are truly interested in being on the team and are willing to work for it. Those who don’t spend [page 104] much time in preparation are not usually prepared to spend much actual time working during preparation for the competition. An interview is another excellent way to garner basic data. ‘Describe a time when you have had to work on a team that had difficulties. How did you cope?’ ‘What is the hardest thing you’ve ever done?’ ‘Why do you think you’ll make a good mooter?’ An interview is also an excellent opportunity to provide the student with information about the competition, to ensure that they realise the university’s expectations and understand the time and work commitments involved. It will also allow selectors to determine whether the student does indeed have the time to commit to a team. How many other subjects are they doing? What are their other commitments (such as work)? Do they have holidays planned?

Or, why do they want to do this moot? Because they ‘have a deep interest in international/Chinese/commercial law’? Then why haven’t they enrolled in international/Chinese/commercial law? Have they completed any subjects that would be natural ‘prerequisites’ for the competition? For instance, torts law for the Shine torts moot or constitutional law for the Sir Harry Gibbs constitutional law moot or international law for Jessup. But note here that the brightest students probably don’t need to have done prerequisite subjects. In fact, I have had a number of teams that have gone on to win their competition who have not actually studied the substantive area of law (I can bring to mind administrative law, Chinese IP law, family law and international law). I have also had mooters who have not studied the underlying subject, but who have won best oralist in the competition. So, the general rule would be that, the further along a student is in their degree, the more suited they are to compete in a competition. And, if they have studied the underlying substantive law, the better they are suited to participate in the competition. But … this should not be taken to be a hard and fast rule. You will, of course, find that some students who are trying out for international moots want to do so because they get a faculty-funded international trip. Of course, there’s nothing wrong with this if they are also willing to do the work to sustain a winning team. Talk to colleagues: If the student is well progressed in their law degree, they will have taken a number of subjects and may be known to academic colleagues. There have been a few occasions where, against my colleagues’ advice, I have placed a student on a moot team to my regret. Who selects: Do you want a panel of selectors? Or just you? This will depend on what method you have utilised in the past (if at all) and who else (whom you trust?) is available to undertake the interviews. I have found that including a past student coach or past student team member on a selection team is valuable. When I have done so, the student selector has not had access to the applicant’s academic record or CV (but they have been allowed to see [page 105]

the application letter). But they may bring important ‘inside knowledge’ to the selection task about their fellow students applying — information that it may be inappropriate to seek directly from the student, or that they would not provide (but, of course, beware of hearsay!). Overseas students’ visa requirements and Centrelink: A final note — be aware that the Commonwealth Department of Immigration (or its latest iteration) has rules relating to course load for overseas students. Overseas students are generally required to maintain a minimal subject enrolment. This may mean that, if selected for a moot team, they will be comparatively highly-loaded when compared to domestic students who may be able (or prepared) to drop a course to participate in a moot. Overseas students should be aware of their visa requirements if wishing to participate in a moot. Similarly, Centrelink requires that students receiving FeeHelp also maintain a minimum enrolment. Students should be aware of this when applying for a moot if they intend to alter their enrolment. There have been a number of occasions (although it seems to depend on which office is involved and in which year the competition occurs) where Centrelink has required that students who are receiving benefits and who are intending to travel overseas for a competition require a letter from their university confirming that the travel is for such a purpose.

How Many on a Team? 8.3 Some competitions allow many, many team members (the Vis and Vis (East) competitions, for example). Most competitions allow for three, four, or usually at most five, team members. Simply because you are allowed five team members does not mean you should necessarily chose five, or because you are permitted four, you should chose four. Sometimes team dynamic, efficiency and success will be achieved through having fewer members who work better together. Students are often reluctant to accept this, thinking that with a large workload, the more team members the better. I have had more than one team where it would have been better to appoint less members, because a team of five has become effectively a team of three, because so much of the effective four team members’ time has gone into checking on the fifth team member’s work, or because the psychological drag of the fifth member on the other four

means they all performed less well than they would have without the last member. In other words, stick to four and don’t add the fifth! This will be a different call in each different circumstance of team selection. In some cases it will be worth having that last member who may only contribute a little more assistance to the team — at least it is a little. [page 106]

Timelines 8.4 As academic adviser or coach, you may also be responsible for the administrative arrangements in relation to the moot. If so, you should be aware of the timeline associated with the moot — when registration is due, when memorials need to be submitted, when the competition payment must be made, and of course when the oral rounds are due. You may also be responsible for managing the students’ travel and accommodation, and related issues of insurance etc. Your university will no doubt have rules and regulations in relation to each of these issues. It may be important to monitor your students’ regular progress to make sure they are on track to meet competition deadlines. This seems to be one of the biggest issues for self-directed teams — keeping to deadlines (especially in relation to memorial submission). It can also be among the most exasperating, when it appears to an academic adviser or coach that the team seems to be expecting the adviser or the coach to give them the answers. Since this is probably against the rules, and will certainly lead to a blow-out (a huge one) in workload, it is suggested that the coach’s role and that of the academic adviser be made very clear to mooters from as early as possible.

Workload and Expectation Management 8.5 A moot team that is going to do well in a competition should expect to work very hard — harder than they would at any given subject in the course of their law degree. However, given that mooting in Australia is very competitive and a number of law schools take their participation in competitions very seriously, and have high expectations of their students,

mooters will always underestimate what is required so far as workload goes. Managing a team’s expectations about workload from the outset is therefore critical. Most mooters in Australia tend to be high achieving and competitive students. A good guideline for these students, who will regularly appear in the top 5 or 10% of their class, is that they should expect to put in at least twice as much work as they would do in any of their law subjects. Students who are not top performers should expect to work even harder to compete with those who are — in the same way they would in any subject in their law degree. The reaction of most new mooters to the news that they will be working seven days a week — literally living and breathing their moot subject — is usually one of quiet skepticism, and there will inevitably come a time when a mooter will say to the coach or academic adviser, ‘I never realised it would be so much work!’ [page 107] Ensuring that teams are continually cognisant of deadlines and working appropriately towards them is one of an academic adviser’s main roles. Written memorials will need to go through six or seven drafts prior to submission, at a minimum, and a late start with the actual drafting of the written memorials will substantially increase mooters’ stress and workload as the submission date approaches.

How Much Help? 8.6 The rules in relation to how much and what sort of assistance a coach or academic adviser can give to a team differs from competition to competition. It is crucial that advisers and coaches know exactly what is permitted in relation to coaching, since a breach of these rules can lead to disqualification. Most competitions expect that the mooters themselves will, through their research and preparation, come to master the area of law particular to the moot. The rules of the Jessup competition are perhaps the most comprehensive and explicit and serve as a good guideline for those who will

be assisting a team prepare. Rule 2.4.1 establishes the general rule: 2.4.1 General Rule Each Team must research, write, edit, and develop its own legal and factual arguments without the assistance of persons who are not members of the Team.

Rule 2.4.3 provides more detail as to what assistance a team adviser may give: 2.4.3 Assistance from Team Advisors As a general principle, a Team shall have no greater number of Team Advisors than is necessary to adequately prepare the Team for fair competition. Notwithstanding the provisions of Rule 2.4.1, Team Advisors may provide advice to a Team, provided such advice is limited to: (a) (b) (c) (d) (e)

general instruction on the basic principles of international law; general advice on research sources and methods; general advice on memorial writing techniques; general advice on oral advocacy techniques; general advice on the organisation and structure of arguments in the Team’s written and oral pleadings; (f) general commentary on the quality of the Team’s legal and factual arguments; (g) advice on the interpretation and enforcement of these Rules; and (h) advice as to pleading option or similar strategy.

But wait, there’s more! The Jessup competition rules allow for ‘regional supplements’ and the Australian supplements provide additional details (and additional restrictions) on what’s possible in relation to outside assistance and adviser assistance. Local Australian Rules 2.4.2 states: [page 108] 2.4.2 GENERAL RULE. In accordance with Official Rule 2.4.1, all work produced for use in the Competition must be the exclusive work of Team Members, and only Team Members. No individual who is not a Team Member may assist in any way in the research, writing, editing or development of legal or factual arguments used in written memorials or in oral pleadings, including reviewing and/or suggesting improvements on any substantive legal or factual aspect of written memorials or oral pleadings. 2.4.3 COACH AND FACULTY ADVISOR. In accordance with the letter and spirit of Official Rule 2.4.3, an Australian Team may only have one (1) Coach and/or one (1) Faculty Advisor as necessary to adequately prepare the Team for fair competition. The National Administrator may grant exceptions to this rule based on particular circumstances. Requests for permission to vary the rule must be made in writing to the National Administrator. 2.4.4 GENERAL COMMENTARY BY COACH OR FACULTY ADVISOR. For the purposes of the Australian National Rules, the ‘general commentary on the quality of the Team’s legal and factual arguments’ that Coaches and Faculty Advisors may provide to a team under Official Rule

2.4.3(f) is limited to basic characterisations about merit and non-merit of the arguments. General commentary in this sense does not include advice on how to improve arguments, the correction of error, or highlighting omissions. Advice of this nature as ‘general commentary’ is prohibited and is considered Outside Assistance under the Australian National Rules.

Finally, the Australian Rules even provide commentary on the Australian Rule variations (this is another example of how seriously some Australian Law Schools take mooting): Comment — In the spirit of Official Rule 2.4, Australian National Rules 2.4.3 and 2.4.4 aim to ensure that the written memorials and oral pleadings are the exclusive work of Team Members so that Teams can be judged on their own merit and not in relation to the availability (or the lack) of outside resources and assistance. In limiting Teams to one Coach and/or one Faculty Advisor (with the possibility of appropriate exception), the Australian National Rules recognise the disparities in access to human resources amongst Australian Teams and also the generally high level and quality of international law training across Australia.

Outside of what you are allowed to do, how much you want to do is up to you. It is perhaps obvious that the more assistance and guidance a team gets, the better they will do. Teams (or some team members) can be high maintenance, so it is probably good to ensure you set the groundwork early on regarding your role, to ensure that mooters do not have unrealistic expectations of the assistance they will be receiving.

When to Moot? 8.7 Arguing submissions orally assists mooters develop their arguments. One of the questions an academic adviser or coach will need to answer is when to get a moot team to begin their actual mooting. Student mooters will often be resistant to beginning oral practice when they are under [page 109] considerable pressure to prepare written memorials, considering this a distraction. However, I have found over the past half-decade that an early start to actually mooting almost invariably leads to a better written product. The simple fact that students are forced to defend their developing arguments orally means that they tend to improve them quicker. If you are intending to get students to start mooting early, they should be

reassured that the purpose of these early moots is really to try out their arguments for logical consistency and soundness. Note that this does not breach either the word or the essence of even the Jessup rules which allow coaches and advisers to provide ‘general commentary on the quality of the Team’s legal and factual arguments’. The Australian rules explain that this means that such commentary is ‘limited to basic characterisations about merit and non-merit of the arguments’. Challenging what sounds like a weak argument (‘That doesn’t sound like it can possibly be right!’) and requiring the student to either defend it or, if unable to do so, to go away and craft a better argument or at least toughen up their arguments, is the purpose of mooting at this early stage. The purpose of letting students know that the critique is just for logical consistency of argument will, hopefully, prevent them over-preparing for these practice moots at the expense of ongoing research. At this stage, it is not about style and poise and polish — it should be about flow of argument.

Student Coaches 8.8 If you have the benefit of being able to engage a student coach, either by paying them or, if not, gratis (tell them it looks great on their CV! It actually does), then I would definitely suggest it as a benefit. Not only does this reduce your sometimes quite onerous workload, but it also gives you a pair of ears inside your moot team. Students are sometimes remarkably defensive of their fellow team members, even when those team members may be underperforming or in fact causing difficulties for the team. Mooters are usually more willing to let internal dissension show to a student coach than they are to an academic adviser, and sometimes this will allow their coach to provide advance warning to the academic adviser of brewing problems. More importantly, the ‘corporate knowledge’ that a team can be provided with by a fellow student who has previously taken part in a competition is huge (where possible, a student coach who has participated in the same competition that they are now coaching is desirable). Experience has shown that student coaches are invaluable in ensuring that teams get up to speed more quickly on research skills, written submission drafting and preparation for the oral rounds, and more efficiently than those teams without such a

coach. [page 110]

Issues 8.9 The number and variety of issues that can crop up during the course of a competition are infinite. Some are discussed briefly below.

Problem Team Members 8.10 As mentioned above, sometimes that last team member is someone who should not have been on the team. Generally speaking most teams seem to ‘protect’ even weak team members, rather than complaining about them to their team coaches or academic advisers (this is not always the case). As also mentioned above, sometimes the appointment of a student coach helps an academic adviser become aware of problems they would otherwise remain in the dark about. I have found that having individual private discussion sessions with each team member at strategic points throughout a competition is also a way to allow students to vent their frustration and provide a coach or adviser with ‘inside’ knowledge of how the team is operating together. Otherwise, in the same way that a student’s poor work will betray their lack of effort or ability, the same is of course true of a mooting competition. Given the high pressure of most competitions, a team member failing to cope will soon become evident. Then it is just an issue of dealing with that — and the normal ways of dealing with underperforming students then apply. In worst case scenarios, there may be the option of ‘easing’ a student off a team, or simply dismissing them from the team (for very problematic members). Note that this becomes more problematic when a moot is offered for course credit. In this case, it is suggested, that effective team selection becomes absolutely vital, since it is much more difficult to remove a student from an official course. Of course, removal of a student from a team is a very last-case resort. Of more than 40 moot teams I have coached, there have only been three

instances where this has been an issue. In two instances, the student agreeably left the team (acknowledging that they were not able to cope with the workload) and in one instance I did not remove the student but should have.

Team Expectations 8.11 One of the most demoralising things that can happen to a moot team is that they receive a ‘lopsided’ or poorly written moot question where it is very easy to moot one side and very difficult to moot another. Some tips for dealing with this are found in Chapters 4 and 5. However, at the most basic level, the team should be reminded of three things: 1. Every team in the competition is in the same boat. 2. Teams (in almost every competition) get to moot both sides the same number of times. [page 111] 3. Usually there will be a good number of judges in the competition who recognise the difficult position the team has been put in when they are required to moot the weak side. (I recall once when a High Court judge sitting on a moot final in the High Court in Canberra noted his irritation about a poorly written question, and when the moot was over asked who had written it. Once that person had identified himself, His Honour (as he then was) spent the next five minutes — as the saying goes — ‘ripping shreds’ from the poor author. Actually, he deserved it.) And, importantly, it is in desperate situations that good advocates can shine. A poor advocate can probably win on points when all the cards are stacked in their favour — it is only when an advocate is presented with a difficult situation that they can really showcase their advocacy skills. Another demoralising thing that teams can encounter in moots is poor judging. A typical case is where a judge is ignorant of the particular area of the moot but does not think they are. Consequently, such a judge might consider that your mooters are arguing the wrong legal principles when in fact they are not. Again, this will inevitably be the case from time-to-time. Part of an

advocate’s preparation is to recognise when this is occurring and engage strategies to deal with it. Preparing mooters to deal with the possibility that this will happen might not eliminate the irritation they experience when it happens, but it will certainly lessen it.

Oral Practice 8.12 Here is one of the areas where an experienced coach or academic adviser can be of huge assistance to a team, and without much risk of breaking the rules: advocacy coaching. As those of you know who have had teams compete in competitions, winning a moot competition is only partially about knowing the law. Knowing the law is never a small part, but you can know every nuance about a particular legal issue involved in a moot and unless you have some flair, and style, and even, dare I say it, some showmanship you can’t win (unless the other teams are simply not much competition to start with — and that’s not going to happen). The individual elements of good advocacy in a moot (because advocacy in a moot is different to advocacy in court — where the law is much more important) are discussed in Chapter 5. Here, I simply wish to emphasise several points that should illustrate its importance. First, the more a team practices, the better they will be. After 30 or 40 practices they may be pretty good. But after 41, even though they may be just a little bit better, they will be … a little bit better. Second, good advocacy can be taught, and it can be learnt. There may be some students for whom learning advocacy is very hard, and they’ll never get great at it, but this is the same for anything that a student can learn and that someone can teach. [page 112] Third, the more passionate you are about advocacy, the more passionate your mooters will be. This, also, is probably the same about everything there is in the world to teach, but the fact it is a truism does not make it any less the truth. A passionate and committed coach or adviser will, there is no doubt about it, spur their teams on to greater achievements.

Fourth, you should not pull your punches. Mooters need to be thick skinned and ready to be criticised (constructively, of course). Coaches and advisers need to be ready to criticise them. Good moot training can be like training a marine. They are going to be in tough competition, and unless they get tough training they are not going to cope. So, as long as they also have the support to continually improve, mooters need to be pushed to improve — pushed in each and every practice moot. Even towards the end of preparation where they are pretty good, you need to find one small thing to concentrate on (if not more). Fifth, an eye to detail is important. When you have two excellent advocates, who have an excellent command of the law, confident bearing and an engaging manner, but one has the mildly irritating habit of flapping his or her hands sometimes when he or she answers questions, or gazing at the ceiling for the answer, and the other does not, who will get the better marks? Do not think that even small things cannot be improved on — they can. There are teams out there operating on this premise so you need to too, in order to be competitive. As noted, Chapter 5 will give you a long list of little (as well as big) things to concentrate on in your practice moots.

Judges for Practice Moots 8.13 A final issue: one of the most difficult things for some coaches is to find judges who are willing to judge practice moots. Actually practicing a moot in ‘moot conditions’ is hugely invaluable to mooters — so as many of these as you can manage are ideal. It is always good if a judge is willing to read the problem, the major cases relevant to it, and has some expertise in the area. Many practice judges will just read the question. There was a time when I used to try to shield my mooters from judges who I thought were likely to give them erroneous advice, lead them astray on the law, or just, simply, had no idea. However, the simple case is that they may come across judges like this in their competition. If they have had some practice in dealing with the judge who is confused, mistaken (or worse), so much the better — so long as their expectations are properly managed. They should not think that everything that is suggested to them by their judges is correct or something they should

adopt. Maybe it’s the last thing they should be doing. But what they should consider is: ‘How do I encounter a judge like that and still get them to give us the win’? And do it without alienating the other judges? Sometimes this is impossible, but, if it can be done, it is a great skill for an advocate to have. Perhaps even in ‘real’ courts as well as in moot court!

[page 113]

9 C H A P T E R

Judges and Judging Preparation Judging Criteria In the Judging Room Feedback 9.1 This may be one of the shorter chapters in this book — but it is one of the more important. Good judging is crucial to a good moot. Poor judging can be heartbreaking for a moot team who have given up part of their lives in order to compete in a moot competition. Being faced with judges who do not know the law, and clearly have not even read the question, will inevitably make a mooter despair, if not enrage them (hopefully after, not during, the moot). Although all mooters should be prepared for such an eventuality, the experience will nonetheless be jarring. However, if you have volunteered to be a judge for a moot competition, bless you! It is impossible to run a competition without the generous and unpaid contributions of volunteer judges, who are usually busy academics or

legal practitioners, or actual judges. Your contribution on the day can make or break the experience of a mooter, so I do not hold my punches when I say you have a responsibility to prepare well and as thoroughly as your schedule will allow you.

Preparation 9.2 There are a number of things that a judge can do prior to the moot to prepare for their judging. If you have not judged a moot before, here is what you can expect. You should be prepared to spend a minimum of [page 114] about two hours per moot. Usually each side will have about 40 minutes to present their case, and there may be four or five minutes for rebuttal and or surrebuttal. Judges usually spend at least 15 minutes in post-moot discussion among themselves, and most moots usually allow for some feedback to be provided by each of the judges. With the usual time spent beforehand getting ready for the moot, two hours is really the minimum you can therefore be comfortably expecting to spend. Most mooting competitions will have a bench of more than one judge — most aim for a bench of three. To some extent, therefore, this allows for one or perhaps two judges to be less prepared and allow the other judge to carry the burden of the more detailed questioning. However, I have witnessed moots where all three judges have clearly approached the moot with this expectation, leading to a less than satisfactory moot. You will be required to rank the participants. This may not only be important for determining which team wins a particular moot, but the mark you assign to individual mooters may be used to determined individual advocate awards. IMPORTANTLY, remember that this is a moot competition! That means that the team that wins on the law should not necessarily be the team that wins the moot. This is the most important thing a judge should keep in mind. Not only are moot competitions meant to test things like advocacy skills, as well as knowledge of the law, but it may well be (as is often the case) that the

problem that students have been asked to moot is to some extent ‘one sided’. It may well be, therefore, that for all the moots where the students have a relatively good grasp of the law and the issues, the respondent will win. However, it may well be that the advocates for the appellant are much better advocates than the respondents — they have just been burdened with a weaker case. More on this below. Following, I list some of the things a judge can do in preparation for their moot. Read the problem: The very minimum a judge should do in preparation is to read the moot problem. And if you have read it three weeks beforehand, when you first agreed to be a judge for the competition, please read it again the morning before your moot. Moot team members have only a very limited time to present their case, and it is unfair to the first advocate on their feet if they need to spend half their time explaining simple facts to their judges. This situation would clearly also benefit the respondents who would have more time to engage in sophisticated legal argument — since it may only be by the time that the respondents begin their case that the unprepared judge has come to grasp the case before her or him. Know the material: Often the material involved in a moot will comprise more than a simple two or three page problem. There may be an extended memorandum, or problem, and there may be a separate set of [page 115] ‘clarifications’ or corrections. In some moots there may literally be scores of pages of documents that mooters are meant to use to construct their case. Even if you do not have time to read through these in great detail, be aware of how they are organised so mooters can take you to the relevant parts of the documents that they are relying upon for their arguments. It may also be that teams have been required to submit memorials (or memorandum of their arguments). It is rare (in my experience) that judges — even where they have been provided with these a significant time beforehand — have read them (by all means do, if you have time!). It may be that mooters will not be referring to their written submissions. However, it helps to have a quick browse

through, even if just to understand how they are structured, and the main arguments that students intend to make. This will also make for a more efficient moot Identify the probable issues: Even if you are not an expert in the area of law being mooted, you are a legal expert (presumably) and so will usually be able to identify the major issues before the court prior to the moot. Anticipate questions: Once you have identified the probable major issues, you can probably identify some obvious questions to put to counsel. Remember that a moot problem has been ‘constructed’ so the facts provided to students have been deliberately crafted to give rise to particular issues. Usually these issues will not be in relation to settled legal principles — in other words, students will be working at the ‘edges of the law’. A good case should not only be able to deal with the black letter law relating to the students’ issues, but the broader legal principles involved, and, where relevant, public policy issues. Anticipating questions dealing with issues of principle and policy will facilitate a more interesting moot, and test your mooters on the sophistication of their legal understanding. Identify weaknesses in the problem: Which there may or may not be. Often, poorly written problems may be clearly one-sided on a particular issue. If this is the case, you need to take it into account in your judging and in the allocation of marks. If one side has been given a much easier case to argue, then you will need to ‘compensate’ in your scoring if the disadvantaged side nonetheless make a good showing for a weak case. Familiarise yourself with court procedure: The court your moot is in may not be one you have practised in. Students are expected to get the procedural basics right for the courts they are appearing in. Should they be addressing you as ‘your Honour’ or ‘your Excellency’? ‘Madame President’ or ‘Mr Arbitrator’? Should they be sitting on the right or the left of the bar table? ‘Court procedure’ also refers to the procedure of the moot court itself. Different competitions have different expectations, for instance, in relation to whether feedback can be given at all, and what feedback is appropriate. Knowledge of these requirements will usually be provided by organisers beforehand, but can be forgotten in the rush of last minute organisation, so do not hesitate to ask. For instance, can mooters ask for extensions of time? Is

[page 116] it possible for the bench to offer them this? Are mooters able to confer with colleagues? (In some competitions this would be instant disqualification, in some it is encouraged.) Familiarise yourself with the judging criteria and the organisers’ expectations: Usually the organisers of a moot will have a ‘range’ of scoring that they expect judges to apply. You should familiarise yourself with expectation of the moot organisers so that scoring is consistent across the different moots in the competition. If one judge is giving an above average mooter 65% and another judge, with the same evaluation of the mooter as above average, assigns 80%, the individual and team scores will be distorted across the competition. An expectation of mark ‘ranges’ is very important to establish prior to the moot. Competitions will also usually have a ‘judging’ sheet that specifies the different criteria that a judge should consider in allocating marks. Different competitions will weigh different elements differently, so, again, it is important that you familiarise yourself with the criteria for your moot. Familiarise yourself with the rules: It is not necessary to familiarise yourself with all the rules of the competition, but it is very useful to know the rules of the oral rounds of the moot. These will not usually amount to more than a page, so should be easy to check prior to the moot. This will allow judges to avoid allowing inadvertent breaches of the rules, and allow them to identify such breaches when committed (as it may be appropriate to apply penalties). For instance, judges will sometimes (generously) allow extensions of time even though such extensions are not permitted by the rules. A quick check of the rules beforehand will prevent such oversights. Bench memorandum: In some competitions, judges are provided with bench memoranda. These are documents that summarise the moot problem, identify the main issues and provide some discussion of the law and arguments that the mooters should be addressing. If you are provided with such, please note that they are not always comprehensive, and may in some cases be misleading. Unprepared judges, or judges who are not experts in the area of the moot tend sometimes to over-rely upon the bench memorandum,

forgetting that it is only one perspective on the moot problem. Though such a memorandum may specify one perspective in relation to a moot issue, the moot team in front of you may propose another with as much — or more — merit.

Judging Criteria 9.3 As noted above, competitions will weight criteria differently, so the elements below are addressed in a general manner — it will be the competition guidelines that indicate to you the appropriate weighting. Even where a judging sheet gives a breakdown of, for instance, five or six different criteria against which a judge is to assign a mark, with the final total adding up to a mark out of a hundred, many judges will assign a [page 117] ‘final’ mark based on an overall feel for the mooter’s performance. Generally speaking there is nothing wrong with this approach to judging (so long as it is permitted by the competition). Such a global approach is just as likely to provide an accurate measure of the mooter’s performance as an artificial one of assigning marks against distinct criteria — so long as those criteria are nonetheless taken into account in the construction of the global mark. Remember that students are probably competing for individual advocate awards as well as competing as teams in the competition. Although mooting is about certainly much more than ‘simply style’, advocacy in a moot competition should be judged as an art, and the mooter’s persuasiveness will be bolstered by a convincing style as well as by a correct and convincing interpretation of the law. Style is therefore important — this includes the way the mooter looks and sounds, as well as the way they use their voice and body to attempt to convince the bench of their submissions. Presentation and demeanor: Does the mooter read too much? Is the mooter appropriately respectful and courteous to the judges and to their opponents? Is the mooter forceful without being overbearing? Is the mooter nervous? Although this may be the case and is wholly understandable, a mooter who has conquered their nerves should be marked higher than the

mooter who has not. Mooters should look professional and should put their submissions with confidence — and deal with difficult questions with similar confidence (even if they don’t feel it!). Mooters should also not have any irritating habits (waving hands excessively, swaying at the podium, or stroking it are some common examples of annoying habits). And, of course, the mooter should use correct pronunciation and grammar, speak clearly, employ timely emphasis, and have an appropriate volume and inflection. Etiquette: The mooter should use proper language and always remain courteous to all in the court. They should use appropriate ‘courtroom phrases’ such as ‘may it please the court’ in an appropriate way, refer to their ‘learned friends’ and definitely not confuse the gender of their judges! This latter error occurs a lot when a mooter has been practicing in front of male judges and is then faced by a ‘Madame President’. Knowledge of the subject matter: Is the mooter across the facts of their case? They should be able to identify all the factual matters relevant to their case, guide you to them in the material, and explain succinctly their relevance (or their lack thereof). Knowledge of the law: Of course, mooters should be conversant with the area of the law in which they are mooting — and should have ‘mastered’ the cases and statutes that are the subject of their moot. What is meant in this instance by ‘mastery’? First, a student should know the facts of the case upon which they are relying. Too often students will use a precedent case that they have sourced from a textbook or other secondary commentary without having read the case itself. They are simply relying upon the commentator’s or text book writer’s assurance that the case is indeed a precedent for their legal point. At the level of the competitive moot, more should be expected. [page 118] Mooters should be therefore be able not only to identify the facts of the case upon which they are relying, but which court it was heard in, when it was heard, which judges were in the majority and minority (if this is the case) and, if there was dissent, why? They should also be able to assist the court on whether or not the principle from their precedent case has since been relied upon or questioned.

At a deeper level, students should also be able to discuss with a judge the wider principles underlying the case before the court, and any public policy implications that may arise should the court adopt the outcome that is put to them by the mooters. The capacity to move beyond a simple discussion of the law and really address the underlying issues presented by the case (assuming of course that there are any) is one of the things that separates an average mooter from an excellent one. Logical argument: Even where a judge is not an expert in the substantive area of the law that is the subject of the moot, they should be able to identify where a mooter’s submissions just don’t sound right. Mooters need to be able to make a clear, logical argument based upon the facts of their case and the legal authority available to them. Not only should each mooter’s case be clear and logical, but they must ensure that their case as a whole is also. Senior counsel’s case must not contradict that of their junior, and vice versa. Questioning: Questioning is of course at the heart of a moot. Mooters need to move away from merely reciting a memorised script and engage in a conversation with the bench. This should really be one of the key criteria a judge keeps in mind whilst observing the performance of a mooter. Are they able to go where the judge leads them? And, if so, are they able to return their judges to their submissions seamlessly? Or, once interrupted, are they lost? Is the mooter able to answer questions at all? Does their incapacity to do so simply demonstrate gaps in their knowledge of the law or the facts of the case? Does their tone and the rhythm vary between when they are making submissions and when they are answering questions? Do they appear deflated and defeated when they are asked questions they are having difficulty answering? A good mooter will retain their appearance of confidence even when being badgered by the bench — mooters should be able to avoid showing they are in difficulty when being pressed by the bench. Is the mooter able to support their answers with authority? A confident assertion may be impressive, but a confident submission backed up by authority, the relevance of which is clearly explained, is much more impressive. Mooters should also be able to answer the questions directed to them at the

time they are asked. A mooter should not be telling a judge, ‘I will deal with that in due course, your Honour’. If you want an answer to a question now, it is presumably because you need that question answered in order to [page 119] facilitate your understanding of the case. A delay in answering will therefore delay understanding. Therefore a mooter should always be able to answer your questions as they are asked and then firmly, but politely, return you to their substantive submissions. Submissions — advocacy: Throughout their moot a mooter should be advocating for their client. Mooters often forget that that is the essence of what they should be doing, and instead will approach the legal questions before the court in a more academic manner — as if there are ‘right’ answers to the questions proposed by the moot, rather than preferable authorities that support their case. From a good mooter a judge should get the feeling that throughout their case they are putting the best case for their client — that they are effectively advocating for their client. Passion, therefore, is something that you should be looking for in the advocates before you. Not over-the-top histrionics, but firm, confident advocacy for their client. Concessions and deception: It is inevitable that at least one of a mooter’s submissions will be weaker than the others. This is usually the way that moots are structured. Even within a set of submissions, it is inevitable that there will be stronger ones and weaker ones. A good mooter should know when to make concessions and when to concede an argument. This should not occur too soon, leaving their judges thinking, ‘If it was such a weak point, why did they bother making it at all?’ But they should also be able to tell when a bench is not with them, and concede their argument rather than persisting with it when they should know they are going to lose on it. A good mooter will also be able to make a concession but explain to the bench why that concession does not in any way harm their case. A mooter should never attempt to deceive the bench, in the same way that an advocate has a duty not to deceive the court before which they are appearing. Often mooters will attempt to put a spin on the facts that do not support their case, and this is appropriate to a point, as there may always be

more than one interpretation of a factual matrix. However, they should not deceive a court by improperly construing facts or by deliberately misusing authority. Mooters who do so should be penalised in the marks awarded to them. Time management: Moots are not like courts — in that mooters have very little time to present their case. One thing mooters must try to do is to maintain control of their submissions. This they should seek to do even in the face of persistent and belligerent judges. Although sometimes this will be nigh near impossible, a good mooter should have at their ready a number of tactics to move a judge along — whether this be to concede a point, to deflect a question, or to redirect the court’s attention. This is not only good advocacy because it steers judges away from weak points, but it is a necessary skill when a mooter has only, usually, about 20 minutes to put their case. [page 120] A mooter who has announced that they have three submissions to make, but has finished their time having only dealt with one, should be appropriately penalised (in the absence of a judge who has simply not allowed them to control their case). Silent benches, interventionist benches: How much questioning should a mooter be exposed to? As a general principle, judges ask questions in a moot not only to understand the case before them, but to test the mooter’s capacity as an advocate. The better a mooter is at ‘dealing with’ questions, the better an advocate they will be. A judge will use questions to test the depth of an advocate’s knowledge, to determine whether they are able to deal with the complexities of legal principles and public policy, and to test their capacity to deal with and distinguish in a sophisticated manner difficult authority that may be against them. Generally, the better an advocate is, the better they can deal with questions. Judges who begin to press a mooter only to find that they cannot cope with questioning at all (yes, mooters have been known to cry, faint, vomit or simply freeze) usually spare them from any more questioning. So, in short, persistent questioning of a mooter should usually be, for that mooter, a good sign. It means the judge feels comfortable with pushing them a little more, to see how much they can take. Having said this, judges should

also remind themselves that the advocate does have only limited time, and they should be allowed to address all of their case before that time is up. One of the things a competent mooter dreads the most is a silent bench. Mooters generally prepare their moot with the expectation that a minimum of about 33% of their time will be taken up with questioning. A bench that asks no questions at all will therefore leave a mooter short by around seven or eight minutes — and no mooter likes to (or should) sit before their allocated time has concluded. Even more importantly, a silent bench means that an advocate’s skill is not being properly tested. Usually moot competitions will require judges to allocate at least a third of the marks to how well an advocate handles questions. This skill will simply not be tested with a silent bench. Similarly, it will generally be difficult to test a mooter’s knowledge of the law unless they are asked to explain the fine points of the authority they are relying on. A silent bench, therefore, has failed to really test a mooter on at least half of what they are required to test that mooter on. Rebuttal and surrebuttal: By the time rebuttal and surrebuttal has commenced, a judge has usually decided to which side of the moot they will award the win. Rebuttal and surrebuttal therefore is a useful way of allocating an advocate a few extra points (for a job well done) or for confirming the lower mark that you had previously decided to allocate. In a very close moot, on the other hand, a good rebuttal can be a moot winner. Rebuttal should be an opportunity for an advocate to land the most telling blows on their opponent. A good rebuttal should be rewarded if it is succinct, successfully undermines a major point or points of the opposition, [page 121] is supported by (better) authority (than that which the opponent has relied upon) and, although remaining courteous, nonetheless is delivered with panache and aplomb. It should, in other words, deliver the ‘knock-out punch’.

In the Judging Room 9.4 Most competitions require that judges make their own decision in relation to the marks they allocate. A discussion after the moot as to which team

judges thought won is therefore, in most cases … a moot point: most judges already have a clear idea and are unlikely to have their minds changed. Where the moot was close and a judge is not sure, however, such a conversation may be useful. A conversation after the moot is useful if one of your fellow judges seems to have awarded a win on the merits of the case and not on the quality of the advocacy. This may be a good opportunity to gently remind them that they should be looking at a range of other things in coming to their final decision. A discussion is also useful in order to gauge the marks that your fellow judges are awarding. If you are all agreed that team A was the clear winner and were excellent advocates, and the other two judges are awarding them an average of 85% but you were considering awarding them 98%, then perhaps you are a little too generous in your estimation of their appropriate reward. It is also useful to have the perspective of a judge who has judged in the competition on previous occasions when you have not, or has judged previous rounds of the moot when you have not. These judges can influence the marks you award by giving you a perspective you otherwise would not have through their wider experience.

Feedback 9.5 Most judges are kind in their remarks after moots. Many a time (in fact most of the time — and especially in final rounds, and almost inevitably in the final round of a competition) the presiding judge will provide feedback to the teams that their advocacy was all very good and equal to many currently practising advocates that they have had appear before them in court. Although this may be true, it is not particularly helpful advice to a team shortly to undertake their next moot! Although much judge advice is ‘generic’ or vague, and needs to be so (see below), do what you can to provide something helpful for your teams. Be aware, if you have not judged before, that most competitions do not allow teams to know whether they have won or lost a moot immediately after the moot has concluded. The judges’ decision is secret and communicated to the organisers. In a multi-preliminary-round, moot teams will not know

[page 122] whether they have progressed to the quarter- or semi-finals until all the preliminary rounds have commenced and the scores or wins/losses have been tallied. Most competitions also prohibit competition judges from giving specific feedback to mooters after their rounds, restricting them instead to providing only ‘general’ feedback. Having this in mind, however, try to give as helpful feedback as possible without giving individual mooters specific tips in relation to their moots. In a moot, for instance, where the appellants have been very laboured and circumlocutory in coming to their conclusions, perhaps a judge can say words to the effect of: ‘You should all remember that you have very little time in a moot to get your submissions across. What judges like advocates to do is cut to the important issues in contention as quickly as possible. Once or twice in this moot, I wondered where counsel were going to with their submissions’. Although you have not pointed to specific instances, those mooters at fault should get the point. As well as identifying, in a vague way, some negative aspects of performance, it is traditional for judges to make some encouraging comments to mooters in feedback. It is generally acceptable to identify positive things that mooters have done well: ‘Mr Smith, I did not catch you looking down at your notes once!’ ‘Ms Jones, that was an excellent rebuttal — very confidently done!’ or ‘Mr Chan, although you seemed nervous when you started your submissions, you relaxed and adopted an excellent rhythm to your submissions!’ Whatever you do, try not to make it clear from your feedback who has won the moot. If you have three pieces of general negative feedback that seem clearly directed at the appellant, you are likely to undermine their confidence for the remainder of the competition — and that’s no fun. If you wish to make vague suggestions on ways teams can improve, try to make sure you have some points that the appellants think are directed at them, and some the respondent’s think are directed at them — that way each team will be not quite sure whether they won that moot or not, and this will keep them on their game for the coming rounds!

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10 C H A P T E R

Organising a Moot Purpose Scheduling, Timetabling and Resources Structure Moot Topic Judges Sign-up and Drop-outs 10.1 If you are considering running a moot competition, whether within your faculty or even at a national level, the following are some basic tips that should cover most of the things you will need to consider.

Purpose 10.2 You should have clearly in mind why you are running a moot competition from the outset. It may be to encourage more students to become

involved in your faculty’s mooting program, or it may be to act as an assessment item in the course you are teaching. These different motivations will require different approaches to make your moot competition successful. For instance, if you are wanting to attract more students to involvement in your faculty’s mooting competition, the more motivation you give them, the more likely they are to get involved. Prize money (believe it or not) seems to be one of the best motivators in this case. Students who are already keen on mooting will get involved anyway, but providing those who are only mildly interested with this additional motivator just might get a few involved who develop a passion for mooting. If the moot is an in-subject assessment task, you will not need to motivate students — as they will all want the marks [page 124] anyway, and tend to respond well to non-traditional assessments such as moots.

Scheduling, Timetabling and Resources 10.3 Consider when you want to run your moot. Preparation for a moot (by the mooters) generally tends to be as time consuming as, if not more so than, a regular assessment piece. If you are running it as an assessment, therefore, it is better to schedule it when other assessments are not scheduled. If you are running a competition, this is even more important, as students will overwhelmingly prefer their assessment marks to participation in a moot competition. You will find that if your students are otherwise distracted by assessments you will have a good sign-on rate but a large subsequent dropout of teams as students realise they have over-committed. If you are considering running an intervarsity competition, timing will also be crucially important. Most competitions are scheduled to take place during public university holiday times, to avoid requiring students to miss classes. Given there are now a number of competitions running across Australia, finding a gap in an already busy moot calendar would be tricky (but not impossible). If you are considering running a competition during semester time, the beginning of the semester will be much more appropriate than towards the end when students’ minds turn to exam preparation.

You will need to construct a timetable for each deadline in your moot (perhaps working backwards from the competition date), including: date of competition (this includes welcome function, and social functions as well as the rounds); date memorials must be submitted (if you are having pre-submission), and, if you are having double submission (that is, applicant and respondent at different times), you will have to consider the logistics of this; date for finalisation of registration and payment (you will need this because you have to schedule the draw); date for clarifications (if you are doing this); date problem is released; date competition notified and advertised. You will also need to carefully work out your ‘internal’ timetable. You will need to consider things such as: recruitment of judges; doing the competition draw; depending on how memorial judging is to occur, recruiting memorial judges and allowing sufficient time for them to review the memorials; drafting the problem. [page 125] Most moots are these days coordinated through a website, so you will need to ensure that you have sufficient technical expertise at your disposal to have the site updated as required — especially at crucial dates. If memorials are to be submitted in hard-copy form, you will need to coordinate collection and distribution to memorial judges, and you will need a system for managing registrations and processing payments. If you are intending to run a moot, you will also have to ensure that you have the physical resources available to run your moot, particularly rooms in which to conduct each of the moots. You will also need a space for judges to meet beforehand and be briefed, and you will need to provide timekeepers for each moot. It is also appropriate to provide visiting teams with resources such as library access, printing access and some space reserved for preparation prior to moots.

Consider also things like management of accommodation if your moot is an intervarsity moot — participants should not have to travel too far from their accommodation to get to their competition rooms.

Structure 10.4 How do you intend to structure your moot? There are a number of things to take into account here: Number of rounds: The traditional structure for an intervarsity competitive moot is four rounds — requiring each team to moot each side twice. If your moot is an assessment moot within a law subject, a single moot is universally used. If it is an intervarsity moot, do you intend to have quarter-finals, semi-finals and finals? Or just semi-finals and finals? Usually this part of the structure will be dictated by the number of teams involved in the competition (ensure your competition’s rules reflect the structure you have chosen, or give you the flexibility to adapt). If you are running an intervarsity competition with a single round, presumably progression to the final round will be on the basis of points. If you are running a competition such as this, you should try to have a single judge for all the moots or devise some other way to eliminate variations in scoring among judges. Progression in final rounds: How will teams progress into the final rounds? That is, how will you determine which teams qualify for the quarteror semi-finals after the preliminary rounds? On the number of moots won? On points? If on the number of moots run, you may have more than eight (if you are running quarters) or more than four (if you are running only semis) on the same number of wins and losses, in which case you will have to utilise a secondary method for choosing which of those with the most wins progresses. I suggest you look at the rules of existing competitions (refer to Appendix 1 at the back of this book, which has web addresses for most moots) for some ideas on what might be appropriate for your moot. [page 126] How do you intend to have teams progress between the final rounds? Will

your quarter-final rounds and semi-final rounds be knock-outs or will progression be based on points? Almost all competitions are based on progression by knock-out, but it may be appropriate in an internal competition to have progression on points. Speaking time: How long will your mooters moot for? In most circumstances it would not be appropriate to allow less than 10 minutes per mooter (or 20 minutes per side) since it is very difficult to put any but the simplest case in a time less than this. Competitive intervarsity moots usually allow longer than this — usually around 40 minutes per side. At a high school level, 10 minutes per mooter is adequate. Weight of memorials: If memorials are to be scored and taken into account as part of the teams’ scores in each of their rounds, how is this to be structured? What weighting is to be given to the memorials? Will the memorial component apply in the final rounds as well as preliminary rounds? How are the memorials to be weighted? That is, if you have team A (appellant) mooting against team R (respondent), do you take both teams’ overall memorial score into account A(A+R) v R(A+R) or do you weight team A’s appellant memorial against team B’s respondent memorial? Once you have decided on how, do you simply allocate a raw score? For instance, if team A scored 89 out of 100 overall on their memorials and team R scored 65, and you have weighted memorial scores as 10% of the mark, do you allocate 9 points to team A and 6.5 points to team B? Or do you have a winner takes all allocation — since team A was higher, they get 10 points and team B gets none? As you can see, different methods of weighting give a different ‘weight’ to the memorials. In the instance above using the first method, there is only a 2.5 point difference between the value received by the teams — probably insignificant in deciding the outcome of a moot. Using the second method, a team’s performance in the memorials (quite a significant part of their preparation in most instances) is given a higher weighting — 10% (even this is still small, but may be determinative in a close moot). Scoring: How do you intend to score moots? What will your marking criteria be? In addition to deciding how memorial marks will be weighted into the competition, you need to provide a set of criteria for judges who will be sitting in judgment on your competitors. Again, assistance can be obtained

from the various competition websites you will find listed at the end of this book. As a general guide, in addition to the written component of the moot, most competitions allocate scores on something like the following criteria. Each of these might be weighted in an approximately equal way (ie, 30% each): Content of oral presentation: submissions are logical; mooter understands law and its relevance; legal arguments relate to the facts, are based on a sound knowledge of the law, and are reasonably arguable in the current state of the law; submissions address and deal with opponents’ best points. [page 127] Speaking ability and delivery (including the formal aspect of appearance): overall persuasiveness of the presentation — ‘advocacy skills’; general presentation; conviction, sincerity and confidence; appropriate courtroom demeanor and professionalism. Capacity to deal with judges’ questioning: confidence in answering questions; understands question and addresses it and any underlying concerns; links answer back to submissions; remains composed under stress; flexible to bench’s needs but in control of submissions; succinctness and precision; honest and lacking evasion in relation to difficult issues. Penalties: In relation to what errors, omissions or acts you wish to impose penalties for, and what will they be? The purpose of penalties, of course, is to ensure a fair competition where teams will advance on their merits. You should ensure that all penalties are clearly articulated in your rules. Rebuttal and surrebuttal: Do you wish to allow rebuttal and surrebuttal? Or just rebuttal? Or neither? At a high school level, and perhaps for moots organised in class or in faculty, rebuttal is perhaps not necessary — and sometimes not advisable. If students have not mooted before, they will probably not handle rebuttal well, and not gain much advantage from it. Especially in faculty moots, where many teams drop out before their moot, you will find some teams mooting alone, without opponents. In this case, those teams may be disadvantaged compared to those who have had the capacity to undertake rebuttal, so here, too, it may be an idea not to allow rebuttal.

Moot Topic 10.5 What area of law do you pick for your moot? Clearly, if you are running a moot in a substantive law subject, this will not be an issue. If you are running a moot for a high school class, pick something that might be relevant to students. There are plenty of cases available dealing with incidents at secondary schools — bullying, injuries and so forth — that will give you a relevant context upon which to base your moot. If you are picking a moot topic outside of a course, for instance in a law faculty, probably pick an area of basic law to maximise the number of students who can comfortably commit to the competition — so a basic contract, torts or criminal law moot would be appropriate. Otherwise, if your faculty has specialist areas of research expertise, these areas might be an area to choose — thus further deepening the overall profile of the subject area for students in the faculty. If you happen to be considering a new intervarsity moot, the probable first criteria is that it should not be something that is already being done. In Australia we now have moots in the area of contract, torts, international law, family law, maritime law, space law and administrative law. Probably one of the major constraints facing anyone considering a competition — especially a new intervarsity competition — is the availability of judges with specialty in the area of your moot. It would be almost [page 128] impossible, for instance, to hold a moot on maritime law outside one of the major state capitals — because it is only there that you will find sufficient practitioners in maritime law. You definitely do not want a competition where all of the competitors know more about the subject area of the moot than all their judges. When crafting your topic, remember that it should under no circumstances heavily favour one side — either appellant or respondent. It should allow both sides the opportunity to make a reasonable case — even if some of their submissions are going to be weak. Usually moot problems are set using a recent or well-known High Court case (or a case from a higher jurisdiction court relevant to the moot topic).

Although your problem may have similar facts to that ‘precedent’ case, the facts should be different enough that it is not clear whether the legal principles apply — that is, both sides can make a case. Mooters are provided with: 1. A set of facts, outlining a crime or a tort or a (perhaps alleged) contractual relationship. The facts outline the dispute or the controversy between the parties. 2. A ‘judgment’ of a trial court or an intermediate appeal court relating to the fact scenario in (1). It is from this judgment that the mooters will prepare an appeal or defend the findings. 3. Some reference to precedent cases, or applicable statute. It is usual in less complex moots for the moot problem to provide references to the case that applies. You may decide to be more or less prescriptive, depending on how much research you want your mooters to undertake. As an example of a not-too-onerous set of instructions, I reproduce below a set of instructions attached to a recent internal moot competition relating to criminal miscarriages of justice: INSTRUCTIONS Assume that the defendant John Michael Harris has been granted special leave to appeal this decision to the High Court. The sole ground of appeal is that the Queensland Court of Criminal Appeal misapplied s 668E(1A) Criminal Code Queensland (‘the proviso’). You are acting either for the prosecution or the defence at that appeal. Relevant cases and supporting material: Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, particularly the judgements of GUMMOW, HAYNE, CALLINAN AND HEYDON JJ at paras 1–44 The Queen v Stafford [2009] QCA 407 particularly the judgement of Keane JA at paras 131–152 Article by Stephen Odgers SC entitled ‘The Criminal Proviso: A Case for Reform’. It can be found at: [website address provided] [page 129]

Judges 10.6 This is probably one of the major preparatory tasks you need to undertake prior to your moot even being advertised — ensuring that you will have sufficient judges on the day available to judge all the preliminary rounds. So ensure you have the numbers and a sufficient number of quality judges, to sustain your competition. If you are running an in-faculty moot, it is probably fine to recruit experienced, seasoned mooters to act as judges — they should be considered by their peers as acceptable judges. Consider a briefing for judges — especially if they are practitioners who have not judged a moot before. Often these sort of judges simply award a win based on which side they think ‘made their case’ rather than judging the moot according to the provided criteria, remembering that it is advocacy skills that are being judged as well as knowledge of the law and its application. Guidance for moot judges is found in Chapter 9.

Sign-up and Drop-outs 10.7 If your competition is an intervarsity one, you will have to have a formal registration process. If it is a competition internal to your faculty, you will have to provide students with some way to sign up. A sign-up sheet specifying times for the moot and allowing mooters to pick sides (appellant or respondent) is easy enough. Usually mooters sign-up as teams of two (as competitions are run as two appellants against two respondents), but you may wish to make some provision to match-up ‘single’ mooters who do not have someone they know who wishes to be involved. You may also wish to require mooters to provide contact mobile-phone numbers so that, when you get inevitable drop-outs, you are able to contact them to attempt to reallocate times. Especially with internal moots, you will probably find you have a significant number of teams dropping out — some close to the moot competition — some perhaps even on the day, or even an hour or two beforehand. If you have contact details for mooters, you will be able to reallocate some teams so you have two teams in most moots (a sure-fire way

to irritate your judges is to have them turn up and find there are no teams for them to hear — you don’t want this to happen because they just might never volunteer again). (I have not yet found a way to stop this happening, but I am considering the method of requiring teams to provide a minimum returnable deposit on registration — returnable if they show up and forfeited if they drop out, except for a very good, and verified, reason!)

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11 C H A P T E R

High School Mooting Preparation The Principle of the Precedent — Basic Legal Reasoning Preparing for the Oral Rounds The Day of the Moot — Judging Criteria 11.1 If you are lucky enough to have the opportunity to be involved in mooting while you are in high school, this is not only the chance for participation in a fun and challenging event, but gives you a head start for your later mooting career at university! There are a number of students in universities across Australia who caught the mooting bug in high school, and their early experience of mooting was the thing that really sealed their desire to attend law school. If you are involved in high school mooting, therefore, congratulations and may your competition be the first of many. The principles for involvement in a high school mooting competition are really no different from those in any other moot competition. However, given

that you are not law students, and quite possibly do not have a coach or adviser who is knowledgeable or trained in the law, the expectations of your level of knowledge of the law will be lower than that expected of a law student. So, even though all of the suggestions in the previous chapters also apply to you and to your moot, they do so in a simplified way. What you will find below is a ‘nutshell’ set of suggestions, as to how you should prepare for your moot. Simply because your moot is easier than one of the competitive moots you might be doing later at university does not mean, however, that you can’t prepare with as much diligence as you can spare, and you can get all the professional formalities required of a mooter right. [page 131] In the following guide I have used the actual problem from the Bond University high school mooting competition in 2012 — it can be found in Appendix 2 at the back of this book.

Preparation 11.2 You will probably be at a disadvantage compared to a university student in your preparation because your knowledge of the law will be minimal. However, even with some basic knowledge gleaned from perhaps a semester of legal studies you should be able to effectively prepare for your competition — so, even if you have never participated in a moot before (or seen one!), don’t stress. Most high school moot competitions will provide you with a simplified problem — it will usually not be more than four or five pages long, and will cite perhaps one or two cases and no more than one or two statutes. See the example of Mudflats Shire Council v Dirk in Appendix 2 as an example. You will usually be required to prepare brief written submissions of no more than a few pages, and prepare to engage in a single moot of perhaps 20 minutes per side (that means 10 minutes of presentation for each mooter). Although most competitions will allow you to refer to other cases outside of those provided to you, you should usually concentrate on those that have

been identified in your fictitious judgment, or have specifically been identified for you as relevant in the problem. Most judges will not press you on your knowledge of the law outside of those general principles involved in your case, but will expect you to be able to explain what happened in the cases identified to you, and to be able to engage in a discussion of these cases. Given you have only 10 minutes per mooter, you are not going to be able to stray much more widely anyway!

Preparation — Understanding the Case 11.3 First, when you have received your problem, read it carefully. Not once, but several times. What happened? What is the main area of law that the problem involves? Can you identify the particular ‘sub-issues’ involved? For instance, the general area of law might be ‘torts’ or ‘criminal law’ and the sub-area might be ‘negligence’ or ‘assault’. Once you have identified these basic areas, you will need to ensure you have a basic understanding of the law involved. In the case of Mudflats Shire Council v Dirk, the legal issue clearly involves negligence. It is almost always perfectly clear because the problem sets this out: ‘Dirk commenced action in the District Court of Queensland against the council alleging negligence’. Start with a basic textbook, or even a simple online explanation of your ‘area of law’. What is negligence? What basic principles are involved? What must a litigant prove to show that another party has been negligent? Is there a basic test? [page 132] Even if you were to use Wikipedia (a practice we do not condone at a university level, even though many of our students persist in using it), it is a useful start. Wikipedia begins its description of negligence:1 Negligence (Lat. negligentia, from neglegere, to neglect, literally ‘not to pick up something’) is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm. According to Jay M. Feinman of the Rutgers University School of Law, ‘The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to other people.’

And goes on shortly after to add: … the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below …

This is an excellent start for you. You have your area of law and you see that, for a plaintiff to prove negligence, they must show the three elements have been met — that the council owed Dirk a duty of care, that it breached that duty of care, and that Dirk suffered damage as a result of the breach. Remember that each of these elements may not be relevant in your moot. For instance, in this case it is clear that Dirk has suffered injury. It is even conceded by the council that, since they were the occupier of the land, they owed Dirk a duty of care. In this case the question is firstly whether the council breached its duty. Looking at the judgments of the ‘majority judges’ in the Dirk case (we’ll look at ‘majority’ and ‘minority’ decisions below), the majority thought that the council had breached its duty — that it was negligent and found that the defences pleaded by the council failed. Even though each of these issues may not be ‘live’, you still need to be able to explain to a judge what the basic elements of the tort of negligence are. You can bet that in most moots judges will ask basic questions to test your understanding of the basic principles that govern your case. Once you have understood the basic principles, you need to then understand the more complex legal issues — that is, you need to dig down to the next level of the problem. In this problem, again, the next level is laid out for you to some extent. There are three issues on appeal: 1. whether the council breached its duty; 2. whether Dirk voluntarily assumed the risk of falling off his bike; and [page 133] 3. whether the accident was an obvious risk of a dangerous recreational activity, and therefore the council could say that it had a statutory defense to the claim. In digging down to the next level in relation to issue 1, you would then have to answer a series of more detailed questions: 1. What was the nature of the duty owed by the council?

2. What is the test in relation to what steps a party who owes a duty has to take to fulfill that duty? That is, does a council have to do ‘everything in its power’ to fulfill its duty not to allow Dirk to harm himself? Or is there a less strict test of what it has to do? 3. Given the nature of the duty the council had, what steps could and should have been taken to fulfill the duty? 4. Did it take these steps? Notice that, in formulating these questions, the questions become more actually related to the facts of the case the ‘deeper you drill down’. At the very basic level, you started by asking, ‘What is negligence?’ Then, ‘What must a plaintiff prove to prove negligence?’ Then ultimately you ask ‘What must Dirk prove to prove the council was negligent in this particular case?’ During your moot you will need to be able to move back and forth between a discussion of broad legal principles and rules, and the specific facts of the case. Many mooters make the error of failing to apply the law to the facts of the case. In fact, many law students have the same problem early on in their law exams. You must make the connection between the rules and the facts clear — don’t leave them ‘unspoken’! The next section of this chapter will deal with the concept of ‘legal reasoning’ and how you must be able to apply it in your moot.

Preparation — Formulating a Case 11.4 Following the previous steps, you should have an idea of what you have to do to understand the issues involved in your moot. The next thing to remember is that you are preparing submissions. That is, you are preparing submissions, in this case, either for Dirk, or for the council (for an extended discussion of the importance of this, see Chapters 4 and 5). That means you have to begin to think like a lawyer representing either Dirk or the council. You are not going to appear before the court to answer hypothetical questions but are instead going to make a case on your client’s behalf.

So, in this case, if you were representing the council, you would formulate the start by structuring your submissions into three basic parts — being the three main submissions that you and your partner will make during the moot: [page 134] 1. The lower court was wrong when it found that the council breached its duty of care to Dirk. They did not breach their duty. 2. The lower court was wrong when it found that Dirk did not voluntarily assume the risk of falling off his bike. 3. The lower court was wrong when it found that the accident was not a manifestation of a dangerous recreational activity. Now what you have to do is to begin to fill out the ‘because’ that follows each of these submissions. In other words, the next level of headings under these headings will be: The council did not breach its duty because … All you have to do now is formulate those arguments!

The Principle of the Precedent — Basic Legal Reasoning 11.5 The law is incredibly complicated, but its structure is actually very simple. It is also very logical. One of the main tasks of the mooter is to demonstrate to her or his judges that she or he can think like a lawyer. Lawyers don’t always think like normal people, but their thinking is very logical. Let me explain. If a statute says, for instance, in its definition section that ‘… a human being or human foetus is not an animal’, this would seem to ordinary people to be absurd. Of course people are animals. This is actually an excerpt from section 11 of Queensland’s Animal Care and Protection Act 2001. Its effect is that if I hit you on the nose with a rolled up newspaper I cannot be charged with an offence of cruelty under the Act, but if I do the same thing to my cat, I may be guilty of such an offence. Now, taken in its context, this makes sense. There are plenty of other Acts

that will deal with my behavior if I assault you with a newspaper, but this is not the point. The point is that you cannot rely upon your common sense to work out what the situation is in a legal case. You must apply the system of ‘precedent’ and the rules of statutory interpretation. This follows the principle that there are only two sources of legal rules — what is written in a statute, and what judges have said in the judgments in the courts. If the Animal Care and Protection Act says a person is not an animal, or a judge says a cat is a dog for the purposes of the Domestic Animals Act, then for the purposes of those Acts a person is not an animal and a cat is a dog. If the outcome seems sometimes to be ludicrous to a ‘normal person’, it won’t to a lawyer! So, knowing a little about the law, you know that you cannot go into a court and say, ‘Your Honour, the council should be liable to pay Dirk compensation because that’s the only fair outcome!’ Instead, you must look to the cases you have been given — the precedent cases — and see what they say about Dirk’s situation. [page 135]

Dealing With Precedent Cases 11.6 The basic approach to cases is also simple. In the precedent cases you have been given, judges will look at a set of facts and state their understanding of the legal principles relating to those cases. Those statements become ‘rules’ that subsequent courts must follow. If a court of appeal has found that Oztag (a type of touch football that was what the injured party was playing in the case of Falvo v Australian Oztag Sports Association — one of the precedent cases that needs to be used in Dirk’s case) is not a dangerous recreational activity, then it isn’t — no matter what you or I think. Judges in lower courts must apply the ‘rule’ that Oztag should not be considered a ‘dangerous recreational activity’ for the purposes of the Civil Liability Act. Now, Dirk’s case does not involve Oztag. It involves BMX bike riding of a certain sort. But the Oztag case has been given to you as a precedent case, so you are required to ask the question, ‘Does the rule set out in the Oztag case apply to Dirk’s case?’ Answering this question requires you to compare the facts in each case. If you compare Oztag and BMX riding, and come to the conclusion that the two activities are similar enough, then you will have to

conclude that BMX riding is close enough to Oztag so that the rule in that case applies here. In conclusion, Dirk was not engaged in a dangerous recreational activity. This would be the conclusion you wanted the court to come to if you were Dirk. If you were the council, you would want to reason differently. You would want to argue that ‘the facts of Oztag and BMX riding are so different, that the rule in the Oztag case is not applicable here. And therefore it is open to the court to conclude that BMX riding is a inherently dangerous recreational activity’. If the facts are close enough, the rule applies. If they are too different, it doesn’t. It is not sufficient, though, merely to assert that the two activities are different: you need to explain why they are different to the judge. In order to do this, you also need to go back and look at what the judge said in the precedent case. Did he give a description of what he considered to be a ‘dangerous recreational activity’ and an explanation of why Oztag did not fall in this category? Both the council and Dirk will have to use that description and show how BMX riding does or does not fall within that description. Put simply, you either ‘apply’ or ‘distinguish’ the earlier case. And you must convince the court of the reason why they should accept your submission as to why.

Preparing for the Oral Rounds 11.7 For a more detailed description of preparing for mooting in the oral round/s of your competition, see Chapter 5 above. Exactly the same principles apply. [page 136] In summary, as for any moot competition, the more you practice, the better you will be. Chapter 5 of this book goes through in great detail all of the little things you can do to be a better advocate, but, if you don’t actually practice those things, you will not be able to do them on the day of your moot. It is a good idea to try to see some moots before you have to do yours. Find

a couple online (there’s now a number on YouTube) and watch them through. You may not understand fully the legal argument that is being presented, but you should watch the mannerisms of the mooters (having said this, remember that they’re not all particularly good!). Try to find some videos of finals of big international competitions such as the Jessup competition,2 where you know the final round mooters are going to be of good quality. What impresses you about these mooters? What do they do that you think you should emulate? Rather than watch the moot once and try to pick out things generally, instead watch for particular things that the mooter does as they present their case: Listen for the way they use language. Do they sound convincing? Why? Is it their tone of voice? The way they structure their arguments? The way that they repeat certain phrases? Something else? Watch their eye contact. Are they reading? What do they ‘do with their eyes’ when they are asked a question? What are they doing with their bodies when they are asked a question? What are they doing with their hands? Do they use them at all? When and how? How did they do their appearances? How did they stand up from their desk and move to the podium? How fast are they speaking? How do they use pauses in their submissions? Do they alter their tone or pitch, or the speed at which they are speaking? How? Remember that mooters at a top level of international competition have probably mooted dozens of times in competitions and literally hundreds of times in practice — you would expect them to be good!

Practice is not only about polishing your performance — it’s also about getting comfortable mooting. If you have only practiced once or twice, then on the day of your competition you will probably be very nervous. There will be 20 different things you have to remember: ‘Am I placing my hands right? Am I talking loud enough? Remember to keep eye contact. Do I sound nervous?’ However, if you have practiced keeping your hands still 20 times already, you probably won’t have to think about it.

If you’ve practiced keeping eye contact with the judge when they ask you questions, you won’t have to remind yourself to do so. This frees-up your brain to do the less

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mechanical and ‘higher order’ things — listen carefully to judges’ questions, and logically and elegantly phrase an appropriate response.

The Day of the Moot — Judging Criteria 11.8 Again, refer to Chapter 6 above for a full range of tips for your big day. This part of this chapter, however, gives you the ‘simplified’ list of things that judges are looking for in a high school moot competition. At this junior level of mooting, judges really want to see you get all the basic courtroom formalities right. A more complex and sophisticated moot will be the ‘icing on the cake’ for a moot judge. What are the main things we judges look for in a junior mooter? Confidence: Judges want to see that you are confident (but not arrogant!). It is recognised that you probably haven’t done this before, and may not even be sure that you are doing it right, but you should still do your best to maintain the judge’s perception of you as a confident advocate. In particular, you should be seen to deal with a judge’s questions with confidence. And if you are challenged by a judge, or even if you know you have made a mistake, you should continue with the same confidence throughout. Too many junior mooters look ‘deflated’ after they realise they made a mistake, and do not recover — you need to pick yourself up and move on. The second main way you need to show your confidence is to minimise your use of notes. This leads to the second main thing that judges are looking for: they want to see you have a good knowledge of the facts and an understanding of the law.

Understanding of the law and knowledge of the facts: One of the best ways to show this is to minimise your use of notes. Anyone can read from a script. If you read your whole moot presentation, you have failed to demonstrate that you know anything about the case — in fact, it is quite possible that someone else could have written your moot presentation for you! Reading not only shows a lack of confidence, but also undermines your communication with the judge. If you are not maintaining eye contact, you cannot gauge how a judge is responding to your submissions, and it is certainly not a sign of convincing advocacy where a judge spends the moot looking at the top of your head because you are looking down at your script. Generally, you need to show you know the facts of your case — what happened when — and the facts of the cases you are relying on as precedent. As a result of your research, you should also be able to show at least a basic understanding of the law involved in your problem. This will come out not only through your submissions, but also in answering your judges’ questions. Basic court room etiquette and moot procedure: Judges will expect you to be able to ‘perform as if you know what you are doing’. In other words, you will need to understand basic courtroom etiquette, and understand how a moot works. [page 138] The following checklist outlines all of the basic things a judge will be looking for in your moot. It includes ‘procedural elements’ as well as what might be termed more substantive ones. INTRODUCTION Advocate stands as judge enters, bows, waits till judge sits before sitting Advocate introduces self and partner and explains who they are acting for Advocate checks that judge has written submissions (depending on how the competition is run, you may also have to seek leave to have your solicitor, or junior, hand up your submissions) Advocate offers the judge a succinct overview of the facts and issues (note that the senior counsel for the applicant or appellant is the only

mooter who really does this — the senior for the respondent should not offer the judge a summary of the facts) Advocate explains clearly the only or alternative conclusion(s) judge is being asked to reach Advocate outlines division of submissions between partner and self (ie has effective sign-posting) and the time that each advocate will speak for. CONTENT Advocate does not simply read their submissions! As appropriate, advocate quotes rule applicable from statute, regulation or case; is able to cite judge and page number of precedent cases Does not rush, speaks clearly Listens carefully to judicial questions Is prepared to respond to predictable questions or suggestions Mooter clearly identifies if facts are missing, unclear, or presumed Advocate has appropriate strategies when ‘stuck’ Good pitch and clear diction Advocate maintains eye contact with judge Advocate has no distracting behaviour Advocate has good bench manner (does not fidget, maintains professional demeanour while seated at bar table). CONCLUSION Concludes case within time Has good time management. _______________________ 1.

Please note that if you are using a source such as Wikipedia, it is very US-oriented in much of its content. As the Wikipedia entry notes, the elements of negligence, even in common law countries, may vary. The last thing you want to do is to prepare your moot as if you were appearing in the US Supreme Court, to turn up to your moot and have the judge point out you are arguing rules from the wrong jurisdiction!

2.

You can find a list of competition websites in Appendix 1 at the back of this book. Some competition websites will have links to videos of the finals of their competition.

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1 A P P E N D I X

Overview of Competitions The following section of the book1 lists the main mooting competitions in Australia, along with the major international moots that Australian teams compete in. In addition, I have also provided some information on some lesser known international competitions. These are competitions that Australian teams can compete in, but, to my knowledge, no Australian team has yet done so. The following section also provides information on when and where the moot is held, and, where one exists, provides a link to the website for the moot. Note that most of this information is taken from descriptions of the moots on the official web pages.

Australian Domestic Competitions The following competitions are held wholly in Australia. Other than the Shine torts moot, all competing teams are Australian.

Law Council of Australia National Family Law Moot Where held: Regional rounds are held in regional centres. The final is held

in a different capital city around the country — often in Hobart. Date (approximate): Rounds, July–August, finals usually in October. Website: No official website. Number of team members: Two to a maximum of four members. Format: One moot of 40 minutes per side. The team will only moot once, as appellant or as respondent. The two teams with the highest scores will proceed to the finals. [page 140] Description: The National Family Law Moot Competition was established by the Family Law section of the Law Council of Australia in 1989 to foster relations between law schools and practitioners; to encourage the study of family law; and to increase knowledge of the Law Council amongst law students. State preliminary rounds are held from (approximately) July to August each year and the two highest-placed teams from the state preliminary rounds proceed to the national final. Memorials: Teams are required to prepare a memorial for each side. The rules do not specify a length, but require that the memoranda (as they are called in this competition) must include: (1) the major arguments upon which counsel seek to apply; (2) a list of authorities to which it is intended to refer; (3) the allocation of counsel and speaking times; (4) such other matters as may be provided in the instructions to teams (there were none such in the 2012 rules). Number of moots: One (plus one final). Comments: The moot is unusual in that the team will only moot once (unless they proceed to the finals, in which case only twice). It is also unusual in other ways. Along with the moot problem, both teams are provided with (around) 14 different arguments on appeal — seven for the appellant, seven for the respondent. After each side is allocated their position (either appellant or respondent — this occurs after the registration period has concluded), they choose two arguments from the list of seven. Agreement must be reached between the teams as to which grounds they

intend to argue. The teams then prepare their two arguments, and prepare to defend the two arguments their opponents have chosen. In order to facilitate this, written arguments on appeal and cross appeal must be exchanged no less than four weeks before the moot. Written outlines of response need to be exchanged no less than two weeks before the moot.

ALSA International Humanitarian Law Mooting Competition Where held: ALSA Conference (usually a different capital city throughout Australia). Date (approximate): End of June. Website: . Number of team members: Two members. Format: The preliminary rounds are comprised of three or four rounds (depending on the number of teams registered and the resources available to the organisers) as well as a quarter-final round, a semi-final, and a grand final. If there are not enough teams registered for the competition, the quarter-finals round is abandoned. Description: The International Humanitarian Law Moot Competition is a national mooting competition which is coordinated by the Australian Law [page 141] Students’ Association (ALSA) and the Australian Red Cross and is held in conjunction with the ALSA annual conference at the end of June. The moot problem typically involves a fictitious armed conflict, and raises issues of criminal responsibility of individuals who have committed breaches of the Geneva Conventions, violated the laws and customs of war, or committed crimes against humanity as provided by the Statutes for the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Statute of the International Criminal Court. Memorials: Teams will be required to submit memoranda of argument for each round of the championship. Although only one problem is to be used for the duration of the competition, teams are permitted to update and resubmit

memoranda for each round. Memorials cannot be more than three pages in length. Number of moots: Three or four (preliminary); quarter-finals, semi-finals and finals.

Administrative Appeals Tribunal National Mooting Competition Where held: Regional rounds are held in state capitals, final round is held in Sydney. Date (approximate): June to October. Website: m>.

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