A Guide to Mooting Judges

In making a speech one must study three points: first, the means of producing persuasion; second, the language; third the proper arrangement of the various parts of the speech.

Aristotle

A common thread amongst students who are either experienced or inexperienced in mooting is nervous anticipation of the moot judge. Whether you are experienced or not, the nervous anticipation in both sets of students is effectively the same thing. What will the judge be like? Will they be nice? Will they be strict? Will they ask a lot of questions? What will they ask? Those are the sorts of questions that students invariably, regardless of their level of experience, will ask themselves before a moot. It is therefore hoped that some of these questions can be resolved and students can reduce one barrier to participating in mooting.

What do they want?

If you ask most students before a moot what they think the judge is looking for, one might think that students are convinced that judges want a pound of flesh in order to be persuaded that your argument is correct. That isn’t the case. What they want is very simple: a coherent, structured argument supported by legal authority that tells them how to dispose of a case made by an advocate who is clear, charming and persuasive. Sounds easy, doesn’t it?

Putting it into practice, unfortunately, is where some students fall down. Students get so concerned with making sure the content is right that they don’t practice how it is delivered. Invariably, there are students who are good on content, and okay on presentation, but they still have some way to perfect the techniques. Rarely will you see students who need no help on content and presentation who are, effectively, ready to moot from day one.

Marking criteria

Each mooting competition has slightly different marking criteria. They should all effectively be looking for the same thing, however, it might be phrased in different ways. Essentially, judges are looking to how you deal with the content, and how you present it to them. This excerpt is from the ESU-Essex Court Chambers National Mooting Competition Official Handbook 2011/12:

Content – the insight into and analysis of the moot problem and grounds of appeal; the relevance of the authorities cited and the fluidity with which they are adduced; the ability to summarise facts, cases or law where appropriate.

Compare that with the below excerpt from the Incorporated Council of Law Reporting Annual National Mooting Competition Moot Judge’s Guidelines 2011–12:

Logical structure of legal argument; Recognition of legal issues raised by moot problem; Application of law to the facts of the moot problem

These criteria effectively are wanting to see a well structured argument that analyses and applies the law correctly to the scenario.

Can the advocate summarise what are the issues, facts of cases, what statutes say? All these are relevant skills for any advocate. Structure. Analysis. Application. Summary.

However, it isn’t all about the content. You have to be able to present your material in a persuasive fashion, with good etiquette, and you should refrain from reading. Again, it is helpful to consider the guidelines in the competitions you are entering because the judges, ideally, should be sticking to it. This excerpt is from the ESU-Essex Court Chambers National Mooting Competition Official Handbook 2011/12:

Style – the speaker’s skill as an advocate; the proper use of court etiquette.
Ability to Respond – the rebuttal of opponents’ arguments; the ability to answer questions from the bench.

Compare that with the below excerpt from the Incorporated Council of Law Reporting Annual National Mooting Competition Moot Judge’s Guidelines 2011–12:

Ability to moot without reading from a prepared script, and maintaining eye contact with the moot judge; Confidence of mooter’s delivery; Posture whilst speaking and respectfully sitting quietly while the opposing team are speaking.

In effect, these criteria are wanting to see a well delivered argument that demonstrates the skill the student uses to engage the judge, confidently, in a formal conversation to persuade them that they are right.

Can they address their points without referring to a script? Can they do so confidently, and in conversation with the judge? Can they make sure they dot the i’s and cross the t’s of etiquette? Again, all these are relevant skills for any advocate, legal or otherwise. Skill. Etiquette. Conversation. Confidence.

Etiquette

Students will, in their mooting infancy, make simple mistakes that judges usually pick up on. Forgetting to cite a case, forgetting to ask the moot judge if they are familiar with the facts of a case, citing a case incorrectly are all mistakes that students starting to moot make. Each mistake is understandable because for many students it is the first time that they are being asked to be incredibly formal and present a legal argument.

Things do slip through the cracks. Students should always try to avoid making mistakes, though, because judges are looking for the most polished student or the student who shows that they are better than their opponents at what they have been asked to do.

Students often get hung up on the small things. Do I need to introduce my team? Do I need to introduce the other side? How should I dress? For the most part, these questions have already been resolved in my previous articles on mooting. To restate the point, however, one only really needs to introduce their partner and opposing team if it is an external competition and, unless it is an external competition or you have been specifically instructed otherwise, wear what makes you comfortable and does not detract from your performance.

Familiarity

For many students this will touch upon the very difficult. Getting to know your judge is a very hard task especially when you are travelling in an external competition to another institution and you, perhaps, have five minutes with the judge before you start. In all things, however, you should cater your presentation to them.

You should be sensitive to their body language, patient with them as you take them through your argument and be ready, willing and able to assist them with any issues that may arise.

Some judges express that they like their bundles highlighted so that they can easily find your material, others find that an implication of restricting where they should read. Some judges like an advocate to introduce their authorities but, instead of reading them out to the court, explain why it is important for the court to take notice.

It’s a matter of preference and if you are able to find it out then try to implement it. If you can’t, however, don’t worry. You have twenty minutes to get to know their preferences and try to adapt to them on the go.

Style of judge

Throughout my own mooting career, loath as I am to use the term ‘career’, I have come across many different types of judges. In my experience they fit into two categories and two sub-categories of each. There are the gentle judges and the hard judges. Remember how I said earlier and in previous pieces that judges don’t want a pound of flesh? There is a type of judge that will convince you that, pretty much, that is what they want.

They are few and far between and it’s rare that they are invited back to judge moots. Moots are a learning experience for students. The vast majority of moots are for undergraduates and the worst sort of encouragement to take up the legal profession is a hard moot judge.

Within the gentle judges category, there are two sub-categories: those who are (a) new to judging moots and those who (b) have experience judging moots and are savvy enough to know what the purpose of a moot is. Judges who are new to judging moots are, typically, so nervous themselves at the thought of judging, that they come across as relaxed, patient and calm and less likely to interrupt your moot speech.

Judges who have experience of judging moots already know what it is about and so they are relaxed, patient and calm because they realise what mooting is – it’s a learning exercise first and foremost. Few advocates are great advocates on the first attempt. They want you to assist them; they want you to persuade them, so their demeanour as a judge is oriented toward encouraging that.

Then there are the hard judges. There are two sub-categories to this: show-offs and ‘prove-a-points’. Though it is quite easy to confuse the two there are subtle distinctions between show-offs and prove-a-point judges. Show-offs want to demonstrate how much they know and effectively challenge you to come back at them.

This can be intimidating because more often than not the show-off judges are barristers who are, rightfully, proud of their intellect and want to demonstrate it, as well as to challenge the advocate to stand up to them. They, however, are more cognisant of the name of the game. It is about the advocate showing off rather than the judge – they just want their five minutes of spotlight too.

Prove-a-point judges are perhaps the judges that most students expect moot judges to be like. They expect a hard time with the moot judge giving them an active time on their feet where they are defending their points or being cajoled into conceding their ground of appeal. Doing this however does not make a judge a prove-a-point judge.

The temptation to get a student to concede their ground of appeal is quite high amongst experienced mooters and experienced moot judges because often a moot point balances along a fine line that only needs a small jump of logic to get the advocate to concede. Attempting to achieve a concession from a student with a well thought out argument and a good presentation is a reward for a moot judge.

It is often an indication of how far you can push a student and, especially when starting out, judges want to know how far advocates can be pushed and how far they have developed their argument. If you are at this stage, take heart because the moot judge wouldn’t be doing it if they didn’t think you were capable of handling it.

What distinguishes this type of judge from any other is the attitude that they didn’t get where they were without a hard time and therefore advocates who are wishing to break through to the profession must also receive a hard time in order to earn their stripes, so to speak. They are less interested in you showing off your knowledge and more interested in showing everyone else how good they are.

You may get a combination of the two. In some regards, they could be a show-off, and in others they demonstrate that they know what the object of a moot is. Regardless of what type they are, a mooter has to be able to handle them with care and charm.

Tips

It should be remembered that a moot is a student’s time to shine and it is about your presentation. You should be sensitive to the judge, but ultimately it is your presentation. You need to be aware of time and how your case is progressing so that you cover the material that you want to so that you can tell them what you want them to do.

Of course this is not advocating that one should adopt a blunt ‘This is what I want – do it’ approach because that will not succeed.

You will catch more flies with honey than vinegar.

You have to give them the reasoning why they should find in your favour. If you can do that with a strong, structured legal argument that is presented well and covers all the points you want to make, then you are on your way to understanding what it is a judge wants to see.

It is hoped that this has proved useful and helpful to students either embarking on their first moots or to students who are preparing for entering external mooting competitions. Mooting as a topic has certainly proved very popular amongst our readership and I, for one, would welcome any suggestions our readers have with regards to future articles on mooting. Is there something that has yet to be addressed? Do you have a burning question about mooting? Please do get in touch and let me know what you would like to read about.