Mooting. 24.03.11

1.  Have real case law in cases

2.  2 teams of 2 members each (Appellant vs. Respondent)

3.  40 minutes of oral argument per side (20 min per speaker)

Preparation:

1.  Have 48 hours preparation

2.  Highlight key facts and conclusions that the judge has reached at first instance

3.  What does your client want? What’s the remedy? Can the court offer it?

Researching the Problem:

1.  Start with secondary sources (i.e. the textbook)

2.  Start by finding out what each side is going to need to prove and whether there are any defences

3.  Then find out what elements will be in contention. Don’t waste time trying to prove what you don’t

have to

4.  Halsbury’s Laws of Australia (good secondary source)

Drafting Your Written Submissions:

1.  Use a template...there’s usually one available on the LawSoc Website or ask a senior student for one

of theirs. DO NOT COPY THEIR SUBSTANTIVE LAW

2.  Clarity is essential. Simplicity + be Succinct

3.  Formatting: Best to use sequential paragraph numbering; but also could use subheadings

a.  e.g. 1;1.1;1.1.1

4.  How much authority? (i.e. how many cases do you need)

a.  The more doubtful or contentious a point is, the more cases you need to back it up

General Structure of Written Submissions:

General Point “The Respondent owes the Appellant a duty of care” 

Proposition/Point of Law Shopkeepers owe a duty of care to customers

Authority for that Point Shopkeeper vs. Person

APPLICATION OF THE PROPOSITION TO THE FACTS

OF THIS CASE

  Apply the facts of this case to the case being

debated

  RELEVANCE IS WHERE THE DEBATE IS

Mrs Smit was a customer in Mr Smith’s store.

Getting Your Opponents’ Submissions: 

1.  Double check everything they’ve written. Is it still good law? Is it from a foreign jurisdiction? Has the

 judge been quoted out of context?

2.  Make a list of the points you will need to address and start figuring out some rebuttal

Preparing Your Oral Submissions:

1.  Figure out which teammate will be taking which arguments. In trots moot, the split is often Senior

Counsel: Duty/Breach; Junior Counsel: Causation/Damages

2.  Don’t just verbally repeat your written submissions. Think about where you will expand. Include

relevant quotes from judgements

3.  Write out every submission point on a separate piece of paper. That will allow you to move around

your submissions better.

4.  The less writing, the better. More eye contact and more flexibility

 

Preparing for the Moot itself:

1.  Time your submissions. Read them slowly. Anticipate at least 5 minutes of Q&A from the bench

2.  Figure out what submissions can be shorten or dispensed with altogether if you’re running short of 

time

3.  Get your teammate to ask you questions to practise your responses

4.  Make a casebook – an alphabetical listing of all the cases you plan on referring to, including the

citation, court and basic facts/ratio

During the Moot:

1.  Keep calm

2.  Dress appropriately (suits, corporate wear)

3.  Avoid whispering to your partner. Pass notes if you must.

4.  Signpost frequently! Tell the judge what you’re going to be covering. Signpost every time you move to

a new issue

5.  Use your written submissions as a reference to help everyone understand where you’re going.  

Directing Your Oral Submissions:

1.  This is your case. You are in charge. You will tell the judge what they need to know. Do not ask the

 judge what they want to hear

2.  Don’t ask the judge “Does that answer your question” 

3.  If the judge wants you to move to another issue, move to that issue. If you need to come back to the

point you’re currently on, you can do that after.

4.  Give clear + concise answers to avoid being bogged down (“In the interests of time”)

Answering Questions from the Bench:

1.  You’ll get different types of questions:  

a.  Questions on the substantive law

b.  Questions on procedural law / mooting

c.  Questions to get you to elaborate or clarity your arguments

d.  Questions to get you to respond to the other party’s material 

e.  Questions about cases that you’ve cited

2.  Don’t get frustrated and stay calm!

But what if you don’t know the answer? 

1.  Refer to your written notes in answering a question if you need to

2.  If you don’t understand the question, ask the judge to clarify or rephrase

3.  If you still don’t ask, you can ask to confer with co-counsel

4.  If they don’t know, just say “I’m sorry, I’m not able to assist the court in that point”