Mooting

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.

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.

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.

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.

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.

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.

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.

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.

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.

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…