Image courtesy of Liam Draper
Mooting is a daunting activity for beginners and experienced mooters. As a student progresses and experiences more moots they become less daunting, but as mentioned in Habits, it is not a natural experience. Many students who had previously signalled their desire to participate in a moot will, by the date the moot arrives, would rather be anywhere else than in the moot. Fortunately or unfortunately, depending on your perspective, some students take that as a reason to stay at home, go shopping or do anything else that isn’t a moot. This leaves those who want to do it and can handle the nerves and anxiety in a better off position because the competition eliminates itself before they have even gotten to the moot. It is hoped that by my talking about the day of the moot, it will reduce the number of students who withdraw and bolster the resolve of those who would still, nervously, moot.
Believe it or not, what you wear for your moot is important. It’s hard to believe given that the object of the exercise is to persuade. What does it matter what you wear as long as you can be persuasive? That’s where the importance comes in. You have to be persuasive. If you are mooting externally then you should be aware of what is expected in the competition you have entered. Most competitions require formal dress and place an obligation on the hosting University to provide gowns.
Don’t lower your expectations to meet your performance. Raise your level of performance to meet your expectations. Expect the best of yourself, and then do what is necessary to make it a reality.
Consult the students or staff responsible for mooting at your University if you are mooting internally as to whether you are obligated to wear a specific standard of attire and if it is taken into account in the marking scheme. If there is no obligation to wear formal attire and you don’t feel comfortable presenting your argument in formal dress then don’t. If, however, you feel more confident and more like a lawyer dressed up, then dress up. The key is being comfortable enough to let your advocacy shine through.
All advocates should be standing up. When it is your turn, make sure you stand up in your own time when you are ready and receive acknowledgement from the judge for when to start. The time allotted to you will start from when you open your mouth so if there are butterflies in your stomach before you start speaking take your time, take a breath, then begin.
English courts operate differently to American courts. American legal TV shows are famous for depicting courtroom activity as far more glamorous, far more entertaining than English courtrooms tend to be. This isn’t to say that British courts don’t have their own brand of glamour or entertainment, however, actions that are acceptable in America will find you on the receiving end of short shrift in front of an English judge. You do not need to be antagonistic toward the person arguing against you. You should not feel compelled to stand up and interrupt opposing counsel. There is no need to object. Listen to what they have to say and, if you feel able, rebut what they have said when it is your time to speak. Unless you are in an external moot it is unlikely that they will have the ability to reply so your rebuttal will stick in the judge’s head if it is good.
There will come a time when the moot judge asks you a question. This could be during your speech, if you are mooting externally, and it could also be after your speech, if you are mooting internally. As eager as you may be to answer their question and show off your research, keep quiet. Let them talk. When they are ready to hear your answer, they will let you know. If they have follow up questions, let them get it out. Moot judges are usually practitioners, lecturers or experienced mooters – in any event, they have earned their stripes to sit on the bench. It is counter-productive to interrupt them because it will not engender positive feelings. Positive feelings are what you want – you want them to remember you for the right reasons.
A weak presentation is one that does not change, regardless of its audience. If a student came before a moot court and delivered a presentation on the moot problem and did not allow for any time to be stopped or asked questions, and delivered it the same way each time, then they would surely not succeed. A mooter has to be aware of their audience – the judge – they need to be sensitive to their reactions, both in terms of writing and in terms of whether they look like they are following what you are saying. Break up your performance by asking their permission to move onto separate points. This shouldn’t be done too often as it may come across as too timid. If you have made a point, you feel the judge is with you and you want to move onto a new, separate point, then ask.
Many students get caught in the trap of making easy mistakes. It is likely due to nerves. Lawyers in court when addressing the bench do not ‘feel’ or ‘believe’, for they are not paid to advocate their feelings or their beliefs (though they may find themselves in the lucky position of arguing for their feelings or beliefs); they are paid to make submissions of law and invite the court to adopt their position.
It doesn’t matter whether it’s a moot or a business presentation – poor presentations have one thing in common. You don’t know where one part starts and another ends. Make sure that you are clear in your presentation that you clearly define what you are going to be talking about and when you will talk about them. This also helps to let you know how much time you have to talk about each. For example if you clearly set out three topics to talk about, you will hardly want to spend the majority of your time talking about the first. Make sure, however, that you have practised and know how long your submissions will run. Separate what you are going to talk about so that it is clear to the judge and to yourself.
The true test of a mooter to start with is not in the presentation they give. Many students can present an argument quite well, even if they are nervous. The true test is how they stand up to questioning. Moot judges will attempt to get a student off script and thinking on their feet, answering questions they have about the case. At a very fundamental level, judges want you to display your advocacy, your preparation and your skill of persuasion and that is why they interrupt. It isn’t necessarily to trip you up, make you look small or to give you a savage time – as some students tend to think when it comes to external moots. They are tasked with resolving a particular problem and they want your assistance in knowing which way to deal with it.
A skill in and of itself is rebutting the opposition. Some students are only concerned with their own material and therefore do not consider addressing their opposing counsel’s submissions. When starting out, there is nothing wrong with that. If you can, address it. If you can’t, don’t worry about it. It does show a level of sophistication that not addressing it fails to show. As you become more experienced in mooting then you will want to rebut your opponents’ arguments more often. It shouldn’t detract from your own submission but, where you can, criticise their position by anticipating it in your submission or rebutting it after your opposition has spoken.
Having judged more than a handful of moots, students are very anxious to finish their submissions and do so in a rush. There’s nothing worse you can do when it comes to finishing your moot. Make sure that you end it appropriately, by finishing with a conclusion and by telling the court what you want it to do. You’re being instructed with vast sums of money to go before the Appeals Court and fight for your client; the last thing you want to do is talk eruditely on scholarly points of law and then finish with an anti-climax, not having told the court what it is you want it to do.