When students first begin to moot, there are quite a few hurdles to overcome. The first hurdle that many students fail to overcome is anxiety. The fear of the unknown for many is too steep an obstacle to overcome. Overcoming that anxiety requires one simple step – participate. It is normal to be nervous doing an activity you have no previous experience of. Once you have traversed that obstacle, you’re ready to begin learning how to moot. There is a steep learning curve; most students require many moots to hone their skills and find out what works and what doesn’t. Very few students can start mooting without having done so before and be the finished article. This guide is an attempt at consolidating what I have read in books about mooting, what I have been told by advocates and what I have learned through participating in mooting. I hope that it provides you with helpful advice and a starting point on becoming a better mooter and a better advocate.
The first step is an obvious one. When you sign up for, or are asked to do a moot, the first thing you should do is read the question. Read it. Put it down and think about it. Think about what you think the issues are that have been raised by the appeal. Pick up the question and start highlighting the facts that you think are relevant or that you can refer to in your submissions. Try to be discerning. You don’t want the whole page to look like you would still be able to see it in a nightclub. Try also to spot the red herrings. There will be many facts in a moot problem – not all of them are relevant.
Understand what it is you are arguing. The last thing that you want is to have spent one to two weeks preparing a moot to be told that all your research does not address the moot question. Judges in external competitions have been known to tell advocates to sit down if their submissions do not address the grounds of appeal.
Sometimes the grounds of appeal in moot problems are written in the style of being pro-Appellant or pro-Respondent and so it is difficult to figure out what it is you are supposed to argue. A helpful hint is to try rewriting the ground of appeal so that it makes sense in your head and tells you what you have to argue.
Helpful moot problems will include authorities in the question. One for each ground of appeal is at most what you’re likely to see. This should however give you a great head start for your research as it will point you in the direction of cases that will be helpful for your arguments. From there, you can use Westlaw or LexisNexis to find more cases and articles on the subject.
The next step involves immersing yourself in the case law. After reading the question and making a list of cases which are on point from your preliminary research on Westlaw or LexisNexis. Read the cases. If you find it helpful, make case summaries of those you’ve read. Not only will you become knowledgeable of the area the moot problem is based on, you will have a list of authorities that, if used by the other side, you can easily refer to and attempt to establish what they will argue with that case. Preparation is key. Preparation prevents poor performance. Reading the case law also means that you can select what is helpful and still keep something back for the inevitable judicial intervention which may call upon your wider knowledge and wider reading.
It can be helpful to refer to judgments whilst mooting, as a judge may have made a particularly helpful statement in a case which expresses what you are attempting to persuade the moot judges of. You won’t know what you can refer to in the case if you don’t read it. Mooting is not an exam. You can’t simply list authorities in your favour, refer to what the court decided and let the judge make up their own mind. You have to make their mind up for them. You need to be able to persuade them as to why finding in your favour is the correct decision. Using an eminent and influential judge’s words to help them along the way is what you are after. Reading the case law helps you achieve that.
Once you have established what you are arguing, and what the law says, you are now in the position to develop your argument. You may have been in the position where during your reading you could see arguments you could make. If you’ve refrained from writing them down, write them down now. If you’ve been writing them down, now is the time to refine them.
Writing it down primarily takes two forms. The first is the skeleton argument. The second is the script. Both are important aides in terms of preparation. Crafting a skeleton allows a student to carefully and with precision state their argument. The script aids that student by allowing them to expand on their argument, think about what they are going to say in the moot and organise their thoughts. Each form has a different skill to it.
An effective skeleton argument states the argument that you will make during your moot, and refers to the authorities that you will use during your submissions. In most moots, the skeleton is the first opportunity that the judge has to look at you. It would be foolish not to take the opportunity, with your skeletons, to try and persuade the judge before you’ve even stood up. Your moot submissions should be the gloss on what you have already written in your skeleton argument. If the skeleton exists to set the foundation of your victory, your advocacy exists to bring the judge home.
You will commonly hear amongst mooters to never use a script. To some extent it is true. Scripts are lethal when it comes to making your submissions. If you are too rigid, and haven’t prepared enough, a script acts as a bailiwick against the risk of appearing silly during the moot. It is written in colourful language, it is deliberate, it makes all the points that you want to put to the moot judge and it makes you sound intellectual beyond belief. It is also a crutch. If you have it in front of you, you will be tempted to read it and it may be innocuous because you can’t remember what you were going to say, but then you find comfort in it and you can’t put it down. Reading a script is not what mooting is about.
Most mooters however write a script. You may never see it, but it will exist. What a script does is help you organise your thoughts, it allows you to think of clever phrases that if you remember during the moot may help win over the judge, it allows you to focus in on what is important and it allows you to cut out all the things that aren’t essential to your submissions. Use it as an opportunity to think critically about what you are going to include, what you have to say about it, why it is important and why it is persuasive on the court.
If you’ve participated in a moot you will likely hear judges talk about structure. Having a good structure means that the judge will follow what you’re saying. They shouldn’t get lost with what you’re telling them. In the end that will make the task of persuading her (or him) an infinitely easier task.
A bad structure can easily be the death of your chances. If you’re not clear about what it is you’re asking the judge to do, or to accept, then the time available won’t be taken up by you carefully explaining the nuances of the legal argument you’ve spent weeks crafting; it will be taken up with getting the judge to follow the very basics of what it is you’re trying to say.
One successful method to use is the proposition, evidence and reasoning structure. Your proposition is the submission that you are making. Your evidence is the cases you are referring to. Your reasoning is why those cases are important and why the court should follow them. You should find a structure that works for you and stick with it.
Before a mooter steps inside the room, it is essential that they have practised what they are going to say. You could be one of the lucky few who don’t need to practise and can still deliver a sterling piece of advocacy based on natural talent and aptitude. Chances are that you’re not and you’ll need to practise, which is okay. Most students are like that.
Find a friend. It’s helpful (if only for their sanity) if they are a law student. If you can find a friend that isn’t, and is still willing to help you, that’s great too. They may have a perspective on your case that a law student wouldn’t because they view it with different eyes. The point is – get a friend. Talk to them about your case. Talk them through what you are going to say. It doesn’t matter who the friend is. They don’t need to be a Rhodes Scholar nor do they need to be studying law. The first challenge to knowing you understand something is whether or not you can teach it to someone else. The second challenge is whether you can have a conversation about it. If you can, chances are that you’ve prepared well.
Another, and equally important, way of practising is doing it alone. Stand up and pretend you’re in the courtroom and give your speech. Time it. You can see how long your submissions are going to run. From there you can amend as appropriate if you need to cut material out or add things in. If you record yourself you can listen back and see if your tone is flat, if you emphasised words well, if you talked too quickly – things which you can’t easily do during your actual moot. Doing them before your moot will allow you to iron out issues before you are on your feet when it counts.
There is a temptation when mooting to let your nerves get the better of you. An experienced mooter won’t let on that they are nervous. We all accept that part and parcel of courtroom advocacy is that it isn’t a natural thing to do. It’s not breathing. You have to put yourself out of your comfort zone to do it. So – relax. Take deep breaths and try not to think about what’s coming up. Being stressed or nervous won’t help your performance. At worst the stress will constrict your vocal chords, it will be harder to talk at an appropriate pitch and you’ll be climbing uphill to do the best job you can. Relax.
When the time comes and it’s your turn to stand up, remember why you are there. You are there representing a client paying you a lot of money to put their case forward for them. Alternatively, you are there because you want to win and winning feels pretty good. The task of an advocate is to persuade. So make sure that when you’re standing, you’re performing to the best of your ability. Keep it simple. Keep it on point. Make it persuasive. You can come out with the most eloquent of phrases that would impress any number of lecturers in an essay, but if the judge struggles to understand you, you’re lost. Keep it simple. The longest distance is from your lips to the judge’s brain. You need to make what you say easy to understand and persuasive.
Students who have mooted once or twice often say that it’s not the submissions that they’re worried about, it’s the judicial questions. You can usually spot what they are likely to pick up on in the law and in your submissions for questions. You can’t anticipate how they are going to ask it which is why you worry. Don’t.
It is that anticipation that worries most mooters. Don’t panic and don’t stress about it. Mooting is not about what they ask; it’s about how you respond to them. If you’re asked a question, take a pause and reflect on it. An answer looks better if it appears like you’ve thought on your feet to achieve it. It looks rehearsed if you eagerly recite your prepared answer straight to the question you had been hoping would be asked. If you don’t understand it, ask the judge to repeat it or rephrase it. Drink some water. These are methods that mooters use to get more time to think.
Mooting is a game first and foremost. Part of the game is controlling your performance – don’t panic and don’t worry about what questions you’re going to be asked, think about how you’re going to answer them. Whatever you’re asked, relate it to your submission. If the question drags you off point, bring them back to your point.
Mooting in that respect is a lot like being a conductor. The moot judge doesn’t know what arguments could be made by other advocates; he only knows what arguments you are making. The realm of possibilities is extensive. Keep the judge on what you are saying and why it is important. It doesn’t matter whether it is an unflattering or a combative question –return them to what it is you’re saying.
A word of warning though – some judges may be against what you are saying either because they want to test your skill as an advocate or because they have listened and decided that what you have to say does not have legal merit. It is difficult to know when each is happening, so an advocate’s instinct is best to trust – needless to say it is essential to be able to discern which is happening and when. Failing to recognise when a judge has indicated, either verbally or physically, that they don’t agree with your point can be quite damaging to your moot. Other times judges will like that you stuck to your guns. Take your cues from the judge.
You will have between 10 and 20 minutes to persuade the moot judge that what you say about the law is or should be correct. Students often are more concerned with how they are going to fill that 10 minutes and either attempt to fill it with lots of talking, or they under-do it and leave it very brief. Acting for a client means that if you’re expected to talk for 10 minutes – you fill those 10 minutes. No one says that they have to be taken up by talking alone.
Picking up and using the bundle takes time. Taking a sip of water takes time. Pausing for effect takes time. There are various clever tricks mooters can use to eat into their time, which appear natural but are deliberately done so that they don’t have to talk for the whole 10 minutes. Mooting isn’t about how much you have to say – it’s about what you have to say and how you say it. More often than not the best advocacy is simple. Less is more. It shouldn’t be as brief so as to leave the moot judge wondering what it is you’re asking for; it shouldn’t be so complicated so as to leave the judge confused about what you’re asking for. You should find a happy medium while you’re practising.
Enjoy the experience. You will have spent between one and two weeks preparing your moot (maybe less!); you will have researched the law thoroughly, crafted your thoughts into words and spent hours practising your submissions. The hard work is done. As an advocate, think of yourself as a fighter that trained for eight weeks training for this moment; you put in the time, effort and hard work beforehand. It is your time now to shine and show the judges why all that effort has paid off. Don’t spend all that time preparing and let yourself down by not enjoying the experience.
Mooting doesn’t stop when you’ve sat down and the judge is giving you feedback or the result of the moot. No mooter is perfect and so there will always be something that you can improve or there will be something that you did that the judge loved that you should keep doing. When listening to the feedback, don’t just sit there like a lemon and let their praise and critique of your performance wash over you. Write it down. Read that again…
Write it down. Students tend to think that their moot ends the moment they sit down and it couldn’t be further from the truth. Once you’ve sat down you can get an objective opinion of your performance, pointers on where you did well and where you didn’t. Unless you have a photographic memory you won’t be able to remember it long term. Write it down. It will either help it to sink in or it will give you something to read back when you come to self-evaluate.
Yes, self-evaluate. There is no such thing as a perfect moot. Something will always go wrong or not as you planned. Reflect on your performance, write down what you did correctly and write down what you didn’t do correctly. Keep doing the positives. Cut out the negatives. It is axiomatic that the mooters who win moots aren’t mooters who do not make mistakes; they’re mooters who minimise the mistakes. Self-reflection is a key part of developing who you are as a person, a student and as an advocate. You can’t learn and grow from your experiences if as soon as they are over you forget what happened and what you could learn from it.
Mooting is an incredibly rewarding activity. Being a mooter involves continually evolving, assessing your last performance and improving on it. It is, remember, also a fun activity. There is a great sense of cameraderie involved in mooting when you are part of a team and competing for your university against another institution, which I don’t think you can find in any other activity as a law student. If you want to know more, look out for the rest of the series of articles on Mooting, starting with ‘How to Write a Skeleton Argument’.