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Mooting: A Beginner’s Guide

Mooting: A Beginner’s Guide

This piece is based on my own experiences as a mooter, observer and judge. I am currently running the Inner Temple Lawson Mooting competition along with my Vice President Hannah Fountain, and have previously run the Osborne Clarke Mooting Competition at the University of Reading, and also participated in a number of moots myself at both University and National levels. I therefore want to draw on my experiences to give a beginner’s guide, with the aim of steering you through your first few moots and avoiding the most obvious pitfalls.

Of course a lot of what I say in this piece will be subjective, or based on specific experiences, so I would advise a common sense approach to adapting what I suggest  in order to suit your own style, and it is also important to take into account any nuances you can attribute to a particular judge or mooting situation. Many judges may having completely opposing opinions on the same subject, so you need to be able to read how a judge is responding and adapt your approach accordingly.

Preparation

Preparation tends to be the most time consuming part of mooting. You will need to ensure that you thoroughly read the fact pattern, understand exactly what you are expected to argue, and begin assimilating your relevant authorities for discussion. Just as with essays and other academic work, this isn’t an opportunity to show all you know on a topic. You must simply address the specific ground of appeal as laid out – if you do not do this, expect to be steered back onto the right path by the judge and asked an awful lot of questions!

I cannot emphasise strongly enough how important it is not to take a script into your moot, even if this is the best way for you to prepare beforehand. It may help you to draft a speech before the day in order to get your arguments clear in your mind, but you must ensure that you cut this down repeatedly until you simply have a list of bullet points (at most) to guide you through your structure. You need to analyse your own skills and work out how you prepare best, and make sure you utilise this method to your full advantage.

Make sure you know any cases or authorities you are citing inside out, along with the general area of law on which the moot is based. The judge may wish to discuss a case or ask you questions based on it, and therefore simply taking a quote from the case is not sufficient. You must be able to justify your use of a quote or test and discuss it in the broader context of the case, and you should have a clear understanding of how that case has been judicially regarded, or any particular nuances which may have applied to that decision.

It helps many people to rehearse the speech beforehand. I would certainly recommend this, to ensure that you are familiar with the structure. You also need to ensure that you fall within your specified speech time limit. You want to be able to deal with everything in the allocated time, and also allow a few minutes for judicial intervention (unless the moot operates a stop-the-clock policy for judicial interventions whereby they are not included in your speech time).

It is certainly worth conducting your rehearsals in front of a patient friend, or even just in front of the mirror. If you can record yourself and watch it back, even better. There are little tics that you will notice yourself doing, and rehearsing means that you can eliminate these before the moot and avoid losing marks for distracting hand gestures or other annoying habits.

Skeleton arguments

Before a moot takes place, you will usually be required to submit a skeleton argument. This will sum up your main points and the authorities on which you intend to rely. Make sure that you check if you have any limits on skeleton length or number of authorities to be used, and check for the submission deadline, and ensure that you stick to these – not doing so can lead to unnecessary deduction of points from total scores, which in my own experience as a moot organiser has certainly cost people a potential win.

If deduction of points for this seems petty (as I’m sure some of my own mooters have thought) then you have to view it from the point of view of a practising barrister – if you misread papers in a case or miss a deadline, or make any other error, there is every chance that you might encounter costs penalties or lose a case for your client, and in serious situations you may face disciplinary action as a result.

You should therefore be able to demonstrate that you can read your instructions and follow them to the letter. This also helps to create a good impression and show that you have really thought about what you are doing. There are few ways to make a worst first impression than submitting a skeleton which completely breaches the rules, therefore potentially losing points before the moot has even begun.

The purpose of a skeleton argument is ascertainable from the name – it should represent a skeletal form of your argument which you will then flesh out orally in the moot itself. It must not represent a copy of exactly what you will say in the moot; the judge should be able to get the gist of your argument but without the full details – the skeleton should be the springboard from which you can expand to make your oral submissions. If you simply read out your skeleton argument in the moot then your skeleton is too detailed and your speech is probably not detailed enough!

A skeleton should resemble a court document. The usual heading should be used as within any drafted document. If you are not at a stage of study to know this, and cannot ascertain it via research, you should at the very least make it clear which parties are involved in the proceedings, who is Appellant and Respondent, and the court in which the moot is being heard.

Unless you are the Senior Appellant in a case, it is not necessary to provide a summary of the facts at the start of a mooting skeleton argument, and even if you are the Senior Appellant, ensure that you only present the relevant facts. It is usually possible to intertwine the relevant facts of your submissions within the skeleton itself.

Ensure that you make any cases cited in your skeleton clear. It is usually best to underline and/or italicise the case name so that the judge can skim read and pick out any cases on a quick glance. It is not necessary to separate them out into a list (in my experience with the Lawson Mooting Competition, judges have positively discouraged this as it breaks up your argument). Instead, the authorities should be embedded alongside the proposition for which they are authority. There is no use having a list of three cases and then a couple of points you are going to make underneath – the judge wants to see which case you will use for each proposition.

A skeleton argument should always make it clear who you are. You should therefore finish with your name and fictional chambers (or perhaps institution of study, if it is a competition involving multiple providers) in the bottom right hand corner of your skeleton.

Bundles

In my experience, you will always need to provide a bundle of authorities for a moot. Generally you will need to produce a full copy of each authority on which you rely, in looseleaf format in a ringbinder. Make sure you check specific requirements on this – sometimes you will not need to provide full authorities if the moot is a particularly short one.

You will always provide a bundle for the judge (or one for each judge, if you are appearing in front of a bench), and in the vast majority of moots you would also provide a copy of the bundle for your opponents. This allows both your opponents and the judge(s) to follow your argument and to assess any cases on which you are relying. Whenever you are referring to a case in your argument, and a specific quote within the case, you should first direct the judge to the case in the bundle (using its full citation), and then to the quote or passage in question (clearly labelled) before you begin to discuss it.

As a general rule, you want to make a bundle as clear as possible to navigate. My personal preference is to use numbered card dividers between cases, and then to also attach numbered or lettered sticky labels to any relevant quotes along with highlighting/underlining the relevant passage. Although you clearly would not highlight quotes and go into so much detail in a real court case bundle, in a moot this is key. You do not want to give the judge a reason to get frustrated or struggle to follow your argument, and it saves time if a judge can instantly turn to something on which you are relying. It generally creates a good impression to have a clear and easy to navigate bundle; I have said to many mooters that I really don’t think it is possible for a bundle to be too simplified.

I would not suggest relying simply on colours of dividers/tabs in bundles, for the simple reason that it sounds unprofessional. Also, as unlikely as it is, you never know when a judge or opponent might be colourblind, and therefore unable to navigate on the basis of colours alone.

It is crucial to keep an eye on how the judge is navigating your bundle. If they are struggling to find a quote then you need to give them more assistance, and you must wait until they have found a quote before you begin discussing it (unless they indicate for you to continue) – they simply will not be listening if they are flicking through pages instead. For this reason, I would always recommend having an identical copy of the bundle in front of you. When you label the bundles up, do them simultaneously so that you know each one is completely identical in labelling. Having an identical bundle for yourself is also important in the event that a judge wishes to direct your attention to something else within a case you have cited.

Dress code and general presentation

Dress code can often be a sticking point in moots. It is important to make a good first impression on the judge, or in fact to make no impression at all in terms of clothing, rather than a negative one. The judge is not going to bat an eyelid about your fantastic new shoes/tie/jewellery so it really isn’t necessary to glam up for the occasion.

The simple rule is: just wear a suit. No frills, no gaudy patterns, just a simple suit.  You should dress how you would in court, which tends to be quite different to what you might ‘get away with’ in an office environment. It might sound obvious, but looking clean and smart will go a long way to improving the general impression which you give off in court – a bedraggled mooter with an inappropriately gaudy item of clothing may just switch the judge off slightly and detract from the persuasiveness of your argument.

My personal preference as a female is always to tie my hair back as well – this is something we are told to do in advocacy sessions on the Bar Course. The simple reason for this is that it looks smarter. Plus, in court, you will need your hair smoothed back under a wig anyway, so the practicality is that most women without short hair would have it tied up in any event.

Oral presentation and formalities

This is one of the most significant parts of a moot. You might have brilliant points hidden away in your speech itself, but if you cannot present it in a clear, understandable and (most importantly) persuasive way, then those points will be lost.

Practice speaking in front of a mirror or in front of a friend or colleague who is happy to give you frank and honest feedback, or even record yourself if possible. As a Bar student you will usually be video-recorded in any oral advocacy sessions, and I cannot emphasise enough how important it is to make the most of this opportunity to pick up on your habits. Simple things like flailing hands, fiddling with pens or holding paper too close to your face, can easily be rectified if picked up on before the moot, but unfortunately can have a huge effect on how you come across in terms of presentation if not corrected beforehand.

The key to a good score for presentation is to speak slowly, clearly, confidently (whilst not being arrogant or patronising) and with good volume (not shouting, but loud enough to be heard clearly). The most important thing that I have learnt over the years is to speak slower than you think you need to. Until you develop a good advocacy voice, the chances are you will be speaking too fast – most people do it. So make a conscious effort to speak slower than you think you need to, and pronounce each word with particular care (nobody wants to hear letters being dropped or words being abbreviated in such a formal setting; it detracts from the formality).

Eye contact is another crucial aspect of oral presentation. Good eye contact, along with a confident speaking voice and a general rapport with the judge, creates a better impression than anything else. If you frequently refer down to notes then you lose that flow and the rapport you have built, whereas if you engage with the judge and maintain a good level of eye contact you give the impression that you know your area and are comfortable enough to talk freely about it. It is often the case that a judge may not look at you much during the moot as he is taking notes or reading quotes, therefore it might seem that they will not appreciate how much effort you are putting in to make eye contact, but if you maintain good eye contact throughout, and the judge notices this whenever he does look up, then that is just as important and will score those marks.

Formalities are often a big let down for inexperienced mooters. You absolutely must speak as though you are appearing in court. You never ever say ‘thank you’ or ‘yeah’ or anything you would say in normal conversation. Instead you should say ‘I am grateful’ or other similarly formal phrases.

The Senior Appellant should always begin by introducing all of the participants of the moot, and offer a summary of the case at hand. Often the judge will decline this summary, but particularly in a public moot, or where the judge wants to test understanding of the case, they may still invite you to summarise.

The title of your judge will depend on which court you are appearing in for the moot. Often, the moot will be in the Court of Appeal or the Supreme Court, and as a result a female judge will be ‘My Lady/Your Ladyship’ and a male judge will be ‘My Lord/Your Lordship’. Note that these are not interchangeable, so you would never say ‘My Ladyship’ or ‘Your Lord’. If you have a panel of judges then you would refer to them by the gender of the Chairman, so it would often be ‘My Lords/Your Lordships’. There is nothing more insulting than referring to a judge by the wrong gender, so make sure you get this correct!

As a general rule, you want to use the judge’s title before starting a new point or phrase, for example ‘My Lord, if I may move on to my second point…’ and you should always ‘invite’ a judge’s opinion to something as opposed to asking them to look at it, for example ‘My Lady, might I invite your attention to divider two of your bundle, behind which you will find the case of…’

That brings me on to introducing a case within a moot. Many people fall down on the procedure here. In my personal experience, the ideal method is to firstly invite the judge’s attention to the relevant divider in your bundle, then state which case will be there (using the full citation) and then you must ask the judge if they would like a summary of the relevant facts in the case. If you simply leap into the case and it is one the judge has not heard of before they will not be impressed – similarly, even if they are aware of the case, it shows a lack of politeness and they may simply wish to test your ability to identify the key facts succinctly.

Once the case has been introduced, you can move on to analyse the case and why you say it should or should not be applied to the case at hand. If an opponent has already used the case then of course you do not need to go through this whole procedure, but you should still invite the judge’s attention to the relevant case in your bundle and highlight that it has already been used. It is important to keep an eye on whether they are navigating the bundle and finding the cases as well – make sure you wait for them to reach a quote before you read it aloud or begin discussing it.

You should always conclude your speech with something along the lines of ‘My Lord/Lady, that concludes my submissions. May I be of any further assistance to the court?’ or any equivalent phrase.

Judicial intervention

Judicial intervention seems to be the thing that throws most inexperienced mooters. The key thing I usually remember is that a moot is not simply a chance to get up and recite a speech, but a chance for the judge to interact on the topic you are speaking about, and to ask questions and delve further into any arguments he wants you to expand.

Certainly within the Lawson competition, and I would expect in most mooting competitions, there are specific marks allocated to responses to judicial intervention, therefore you are always going to get asked a question or two – it generally will not necessarily be an indication of how well or badly your argument is going.

My key tip for getting a good mark here is to think before you answer. It is absolutely okay to take a couple of seconds to think about the answer – you should ask the judge politely if you think you need more than two or three seconds. Bear in mind that the judge does not want to sit there waiting for ages, but at the same time it is better to have thought out a succinct answer and delivered it after three or four seconds, rather than blurting out a rushed and not very concise answer straight away.

A judicial intervention may be targeted at challenging something you have said rather than simply asking a further question on an area. If you are confident in your argument then stick to your guns and reiterate your point (politely!) in response. Make sure you answer the question being asked, and are not just repeating arguments that are not relevant. Using polite and formal responses are important here, to avoid seeming rude, for example: ‘My Lady, I am grateful for the question, if I might respectfully expand on a point I made earlier in response…’

The result

Most moots will have a two part result – the winners on the law and the winners on the moot itself. Winning one of the two does not necessarily result in, or preclude, winning the other. Obviously most participants are more interested in winning the moot itself, but many judges like to give a ruling on the law, and this can be particularly helpful to understand the area of law better. Any moot problem is going to be set in an area that straddles existing authorities, so judges will often interpret the law on the same moot in different ways.

It may sound obvious, but being a graceful winner or loser is not only important for dignity’s sake, but also for politeness. It is of course polite to thank the judge in any event, as they will have given up a free evening to judge, and also to congratulate the other side. Nobody likes a sore loser or a gloating winner.

Feedback

Most judges will give feedback in one form or another. My personal preference is to give generic feedback to the whole moot, and then tell the mooters that they are welcome to catch me afterwards or email me for specific personal feedback. However, in larger scale moots, or public moots with an audience, the judge may go into personal feedback in front of everyone in order to justify his awarded outcome. Be prepared for this, and be graceful in receiving any criticisms or praise – it certainly isn’t appropriate to argue a point if you feel the judge is in the wrong.

There will usually be an opportunity to catch the judge afterwards and ask for brief feedback, and I would encourage everyone to ask for feedback in every moot that you undertake. If the judge is unable to give you feedback then ask a tutor or any organisers that were present – they know what they are doing too, and certainly should have a few tips for you. If you attend a moot and lose, and do not get feedback, you really haven’t learnt anything from the experience at all. Instead, if you ask for two or three pointers that you can focus on next time, you will have a direction to work towards and you will increase your chances of succeeding. It can also sometimes be reassuring to hear that you only lost by a few marks – instead of coming away feeling like you lack in any mooting ability, you might instead be comforted by the knowledge that you were just up against really competent competition in that particular moot.

Finally, I just want to reiterate the importance of mooting in terms of CV points and skills development. As a budding barrister it is really important to get involved in mooting if you can. It is the most obvious way to try out and improve your advocacy skills, and to get a feel for arguing a case in a mock court environment. If it turns out you hate the whole process, then being a barrister is unlikely to be your ideal career path. Equally, budding solicitors may also benefit from mooting because, at the very least, you will be able to explain that you have tried out barrister-related activities and perhaps hated them, therefore reaffirming your decision to be a solicitor instead!

I would therefore encourage all law students to have a go at mooting if you get the opportunity, and I hope that the above is of some use in equipping you with the basic skills for your first moot.

If you’ve been involved in mooting recently, we’d love you to share your experiences on our Moot Blog. If you’d like to contribute, send your piece to submissions@thestudentlawyer.com.

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