Wednesday, August 23

How to win a moot – Part 2: Oral Submissions

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A note to readers – This article follows on from a previous article, which can be found here. Part one outlines how to approach ones written submissions in a moot, whereas this part of the guide will cover how best to approach the oral submissions in a competition.

Format

Generally speaking, most mooting competitions will follow a similar format. Teams will consist of one lead or senior counsel and one junior counsel. Often, the lead counsel will be afforded slightly more time to speak than the junior counsel (usually only a few minutes more), however don’t be fooled into thinking that that makes the role of junior any easier than lead.

In a standard setting, the order of submissions shall be as follows:

  1. Lead counsel for the appellant
  2. Lead counsel for the respondent
  3. Junior counsel for the appellant
  4. Junior counsel for the respondent

However, in some instances that may be adjusted to the following:

  1. Lead counsel for the appellant
  2. Junior counsel for the appellant
  3. Lead counsel for the respondent
  4. Junior counsel for the respondent

Once the submissions are complete, if the lead appellant has reserved the right of reply at the commencement of proceedings (this is important!) then they may be granted an extra couple of minutes to rebut points made by the respondents.

Scoring

Moots are (in my experience) always scored based on advocacy and not whether or not one side actually ‘wins’ the legal case (often competitors won’t even know who won the legal side of things).

Typical things to be scored on include written submissions (i.e. skeleton argument and bundle), style (i.e. advocacy abilities), judicial intervention, time management and of course, legal knowledge.

Rules

As stated in the previous article, every competition varies in terms of rules, and so these should be read thoroughly prior to starting any work on a moot to ensure that the competitors are proceeding in exactly the right manner.

Basic mooting etiquette

Before I go into some detail on specifics of the oral submissions, it is useful to get to grips with some basic mooting etiquette. This is by no means a comprehensive list, however these are some absolute basics that should always be kept in mind and followed:

  • Learn the distinction between learned friends and learned colleagues: When referring to your opponents, always refer to them as “my learned friend”. When referring to your teammate, they should be referred to as “my learned colleague”.
  • Make sure you always have the title of your party correct, i.e. appellant or respondent. Don’t say claimant and defendant if it’s not appropriate!
  • Never speak when sat down. If a judge asks you a question out of the blue when it’s not even your turn to speak (it’s been known to happen), then make sure you stand up before you open your mouth!
  • When referring the judge to a case, make sure that you always offer a summary of the case facts – it’s important that they know how the case applies to the matter at hand. A good way of doing this is to say: “Would your lordship benefit from a brief factual summary of the case?”
  • Remember the title of the judges. It’s either “your Lordship” or “your Ladyship”. If there are several judges of varying sex, then they are to be collectively referred to as “your Lordships”. Never say “my Lordship”, however it is acceptable to refer to a judge as “my Lord” or “my Lady”.
  • Never ever interrupt the judge, no matter what.
  • Always be polite, it’s a courtroom not a playground.
  • Avoid rhetorical questions at all costs.
  • Always use full case citations including neutral citations (unless you have already mentioned the particular case, then you can simply refer to it by name).
  • Turn your phone off (obviously).
  • Always remember: Hooligans argue – lawyers submit.

Structure

This is, without a doubt, the most important aspect of mooting if you want to be successful. If you don’t have a solid structure in place, then it doesn’t matter what you’re saying – the judge won’t follow it. A poor structure can absolutely destroy what could be a phenomenal legal argument, so never overlook this.

Before you head into the moot courtroom, you should have in your mind exactly how you plan to navigate through your submissions. Break it down into steps, for example:

  1. Introduction/Factual summary
  2. Outlining of submissions
  3. First ground of appeal, submission one.
  4. First ground of appeal, submission two.

This structure should be very obvious to anyone hearing you speak, thereby making it incredibly easy to keep up – even if the legal arguments can get quite complicated.

Another good feature of this sort of structure is the flexibility of it. If you can see that a judge is not following (for whatever reason) or just simply does not agree with your submission, you can quickly jump into the next part of your submissions.

Perhaps the best way to keep a solid, easy to follow structure is to use your skeleton argument as a map. This heavily links in with the previous part of this guide, and its importance cannot be overestimated. The judge will have in front of him (or her) your skeleton argument, and if what you say coincides perfectly with what is written on the page, the judge should have no problem following your submissions.

Because of this, it is often best to begin your submissions (after the general introduction as to who you are etc – see below) by outlining exactly what you will be submitting, and in what order, for example (please ignore the legality and ridiculous nature of this):

“Within the first ground of appeal my lord, I will be making three submissions that can be followed in the appellant’s skeleton argument which your lordship will have. Firstly, I will be submitting that Mr. Suarez did not intend to kill Mr. Ivanovic when he bit him as he was simply using his teeth for balance. Secondly, I will be submitting that in any event, Mr Justice Moss erred in not allowing the jury to consider the partial defence to murder of loss of self-control, as Mr. Ivanovic’s reckless slide tackle acted as a qualifying trigger as per the Coroners and Justice Act 2009”.

This method is useful, as even if a judge says (and again this has been known to happen): “Actually I’d rather hear your second submission before your first”, you will be able to oblige and deliver that part of your submissions without confusing yourself. Where this is not possible, is when advocates have a pre-prepared script that they intended to read word for word. This is without a doubt the absolute worst way of approaching a moot and it should never ever be done – it’s just too inflexible, and will undoubtedly result in trouble, and just make you look like you don’t know what you’re doing.

Introduction

If you are lead counsel for the appellants, it is your job to introduce your team and the opposition:

“My Lord, should it please the court, my name is Aaron Clegg and I appear before you today as lead counsel on behalf of the appellants in this matter. I am joined my learned colleague Mr. Adam Gulliver who appears as junior counsel on behalf of the appeal. We are also joined by my learned friends, Mr. Joshua Nelson as lead counsel, and Mr. Owain Roberts as junior counsel”.

After this, you should move on to outlining the facts of the case in a brief manner, but offer to do this first – the judge will have (hopefully) read them already and may not want to hear them again.

After this, proceed with outlining your submissions as laid out in your skeleton argument, and as mentioned earlier in this article.

Rebuttal/Right of Reply

If the lead counsel reserved the right of reply at the start of proceedings (done simply by saying “if it should please the court, the appellant’s would like to reserve their right of reply”) then they will be able to exercise this at the conclusion of the normal sequence, usually after junior counsel for the respondents.

Take this opportunity to rebut anything questionable that your opponents have risen in their submissions. You cannot under any circumstances raise a new legal point here, and if you do you will be promptly confronted about this, and probably told to sit down.

This should be short, sweet and snappy. Make your point quickly and efficiently, and once it has been made, move on to your next – there is no need to embark on elaborate rebuttals here – it’s just not as effective.

Judicial Intervention

Judicial intervention is a fantastic opportunity to score points. It should not be something that you are intimidated by, as the judges are asking questions to help shed light on your arguments. It is an opportunity to pinpoint exactly where the judge is interested, and be of as much use as possible.

Preparation is important – try to figure out beforehand what the weakest points of your argument are, and if you cant make them stronger, then prepare for whatever questions you might be asked. This can prepare you for the vast majority of situations.

If you are asked something that you are unsure of, stop, take a breath, drink some water if there has been any provided, and attempt to collect your thoughts. Silence is most definitely not a bad thing, and taking a moment to compose yourself and think of a response is far more effective than simply blurting out the first thing that comes into your head. If you really can’t think of anything, then feel free to ask the judge if you can consult your co counsel – but this should always be a last resort. Never simply shift the entire question onto your co counsel, as this makes your team look rigid, and as though you don’t know the case properly.

If a judge mentions a case that you are unaware of, a good template response would be something along the lines of: “My Lord, I am not familiar with the detail of that case, but on this issue I rely on the decision in [insert case here]and my learned friends have not cited any authority that undermines it”.

Always remember, if all else fails, move swiftly on – don’t get stuck on one thing.

General Tips

This is subjective, but a good format to use during the moot is to have the lead counsel take one ground of appeal, and have the junior take the other (if there are two). This can be adjusted based on whether or not there is a cross-appeal, however this is usually the done thing.

The junior counsel has to act on their feet quite quickly, as they will have the ability to make reference to any comments that their opposition have made before them – this is a powerful position to be in, and if taken advantage of, can be very profitable.

If you make a mistake at any point, don’t be afraid to apologize for it and move on rather than attempting to frantically cover it up – you’ll more than likely just dig yourself into an even deeper hole.

If it’s not your turn to speak, you should still look engaged. Make notes as people are speaking, and pass them to your co counsel – this all adds points to any ‘teamwork’ section of the scoring or any similar category.

Make sure that bundle referencing is always sharp, you should be referring the judge to the exact page within the bundle, as well as giving them the full case citation and guiding them to the exact point on the page which the passage in question is to be found. You need to make life as easy as possible for the judge in order to score the highest marks.

Useful phrases

  • “It is respectfully submitted”…“The appellant/respondent respectfully submits”
  • “I am obliged”…“I am grateful”
  • “If it would please the Court”
  • “The appellant/respondent would invite the Court to…”
  • “…in order to assist the Court”
  • “Might I continue?”
  • “With your Lordship’s permission…”

Delivery

In terms of your actual delivery in the moot, always remember to speak slowly, and clearly. Stand up straight, and avoid making too many hand gestures – it can distract from your actual submissions. Try to use emotive language, and take advantage of intonation – you need to really seem like you mean what you’re saying.

Avoid first person language; instead refer to yourself as “counsel for the appellant”. Most importantly, make sure that you are always assertive – a moment of hesitation can demonstrate your nerves, which will likely affect your scores. That being said, don’t confuse hesitation with pausing; a well-timed pause can be very effective and can really add some flare to your submissions. The main thing to remember here is to keep your composure at all times – a composed, persuasive and well-spoken advocate, stood like a rock, is an instantly impressive sight.

As a final note, it would be nigh on impossible to write a guide to advocacy in a single post, so what I will offer is some basic information and things to keep in mind ahead of your moot. For a great and comprehensive book on advocacy, I’d strongly advise you look at The Devil’s Advocate by Iain Morley QC – it doesn’t take long to read at all, and it’s full of fantastic advice.

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