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INTRODUCTION TO MOOTING
Tips and tricks to help you nail the basics
Moot & AdvocacyWhat is a moot?
Simulated Court Experience where you will engage in APPELLATE ADVOCACY
What does it mean to be an advocate?
Good legal advocates: Use facts and the law to support or defend a position; Choose words purposefully; Put on a performance – an advocates style and manner can be
vital to success
ADVOCACY IS A SKILL OF PERSUASION
PRELIMINARY REPARATION
1. The Question Questions are released a week prior to your
round night During that week you (& your team mate) MUST
prepare: Written Memoranda; and Oral Submissions
Why???? Written memo’s put opposing counsel/judge on notice and
help you organise your own argument; You must submit your memo, and will receive your
opponent’s memo the day prior to your round; Oral submissions are bound by your written memo; Oral submissions are your chance to convince the
judge – you may address or pre-empt points made by the opposition to strengthen your argument.
2. Analyse FactsREAD THE QUESTION
Establish:Whose side are you on?
Appellant or respondent? Originally plaintiff or defendant?
What is the jurisdiction? Might this indicate anything about the problem?
State Supreme Court – which State? High Court – appeal from which State? Federal Court
Is there anything that stands out in the facts? Missing information; Important concessions.
READ THE QUESTION AGAIN
Establish:The legal issues?
What are the grounds of appeal? What has been conceded? What is the best outcome for each party?
Sources of law Is there legislation?
What are the relevant provisions? How old are the provisions?
Have you been given cases?
3. Analyse Law
4. Meet with Team mate
Decide a meeting time (if necessary) ASAP
Decide how do you want to divide the material? Who will address each ground of appeal? Who will be senior/junior counsel? Speaking time (either 15/15, 20/10, 10/20)
RESEARCH
1. General Research
Now you have read the question, understand the issues and have decided which ground of appeal you will address…
Consult a generalist source: A textbook (law librarians are your best friends); Law Library website – case bases and encyclopaedias; Note: You should consult a general source even if you have been
given a case list as you will want to read the cases against the backdrop of a good understanding of the areas of law and give yourself the best opportunity to find recent authority;
Never underestimate the power of Google.
If there’s legislation: Consult a textbook; ‘Noteup’ the section of the legislation you’ve been given (AUSTLII); Note down any key cases that appear in that search.
2. Detailed Research
Look up the cases you’ve been given and any other seminal cases you have read about
Initially a good case summary can be useful to determine the overall thrust of the case (gooooogle);
IF YOU INTEND TO USE A CASE READ IT IN FULL; Understand the reasoning of the judges; Learn to use the library’s resources and access full cases; Note which cases are binding, and which are persuasive.
Use the key cases you’ve found as a springboard for more detailed research if it is appropriate
The best researchers will use cases which establish key elements of law; and
Also cases which are factually analogous
Research cont…
What if there is very little Australian authority? Is there authority from the UK? Is there authority from another jurisdiction –
NZ, Canada, the US? You can use all of these, but remember
these cases are merely persuasive.
DRAFTING WRITTEN SUBMISSIONS
1. Putting research into words
Now you have READ THE QUESTION, ANALYSED and UNDERSTOOD the facts and RESEARCHED the law its time to DRAFT your memo:
The purpose of written submissions is to outline your argument – have a clear idea of what your argument is!!!
Memos must be clear, precise, relevant and REFERENCED; Use headings; Presume ignorance; and Keep plenty of white space.
See Example Memo
1. Broad proposition of law:Case Name (Date) Citation, Pinpoint
1.1 Secondary legal proposition: Case Name (Date) Citation, Pinpoint
1.2 Secondary legal proposition: Case Name (Date) Citation, Pinpoint
1.3 Application of legal propositions to the facts
2. Second broad proposition of law OR submission made in the alternative.
2. Anatomy of a written submission
1. In order for unconscionable dealing to be established, one party must have been in a position of special disadvantage vis-à-vis the other party: Case Name (Year) Citation, Pinpoint
1. 1 Age and infirmity may constitute a special disability:
Case Name (Year) Citation, Pinpoint
1.2 In the instant case, the plaintiff’s advanced age and serious illness constituted a special disability.
3. Basics of Drafting
Establish your core submissions eg, breach of contract = contract existed + express terms breached
Support each proposition of law with at least one authority High Court authority is the dream; More authority does not = more persuasive; It’s not how much you have, it’s how you use it.
Establish any alternative arguments An argument which you can rely upon as a last resort Eg, breach of contract = if no express terms breached, in the
alternative implied terms breached
Establish where policy arguments might be necessary Sometimes the law might be so vague the court has to take into
account broader public conceptions of the issue
SEE EXAMPLE MEMO
What is good about this memo?
Things to avoid: Overusing authority, particularly for uncontroversial
statements; Failing to persuade the court not to follow (or disregard)
persuasive authority; ‘Cherry picking’ quotes from cases and cobbling them
together without ever considering the over-arching principles; Making factual errors; Using authority which has been overruled or later expressed
as being confined to its facts; Spending large amounts of time reciting the facts of all the
case you cite – don’t waste time unless the factual analogy is relevant.
PRE SUBMISSION CHECKLIST
Have you ensured that all your materials refer to the correct parties? Have you ensured each of your authorities is listed in your List of
Authorities? Are all your citations AGLC compliant? Do you have pinpoints where they’re necessary? Have you thoroughly proofread your submissions for spelling or
grammatical errors? Are your submissions a maximum of three pages (with an additional
one page List of Authorities) Have you included your time allocations? Are your submissions in 12 pt Times New Roman font with 2 cm
margins?
ORAL SUBMISSIONS
1. Appearances
Appearances Only senior counsel has to do ‘appearances’ Before oral argument occurs the judge will ask
for appearances
May it please the court. Your honour, my name is Jones and I appear for the appellant/respondent in this matter with my junior counsel Smith. We will each reserve 15 minutes speaking time.
2. Oral Argument
Speak clearly and don’t rush Silence is not the enemy This is the time to be persuasive…
Be passionate (not aggressive) Be confident – use good body language and tone of voice Draw attention to analogous cases, draw upon legal
reasoning in other cases that you can apply Use the facts Ensure you leave time to answer questions YOU DON’T NEED TO ADDRESS EVERYTHING
3. Preparing for Questions
Remember formalities, but engage with the judge Make eye contact Consider the question carefully (silence is not your
enemy!)
NEVER brush off a question even if you will address it later in your submissions What the judge wants to know NOW is more important
than anything you could say later
Agreeing with a judge:• Yes, your honour, we respectfully adopt that point.
We would therefore submit that…• Thankyou your honour, that is an excellent question which goes to
the crux of the issue…and on that point we would submit…
Disagreeing with a judge: • No, your honour, we respectfully disagree/differ on that point and
would rather submit that…• Your Honour, I have put that at its highest and with your leave I
will move to my next submission.
Absolutely no idea what to do – ask to rephrase or buy time
• Your honour, I understand your question pertains to the issue of…• That is an important question your honour, may I take a moment
to collect my thoughts?
4. Handy Phrases
HOW TO MAXIMIZE YOUR SCORE & GET TO
FINALS
1. Scoring Criteria
The judges are given set criteria to apply. These are judging each individual on their:
Organization Development of argument (know the law and facts) Questions from the bench Manner and Expression Quality of written submissions
There are some things that will also help you score well:
SUIT UP!!!! Speak formally and always use ‘Your Honour’
2. Progression to Finals
Competitors will progress through to the Quarter Final based on the following procedure of ranking:
• The eight competitors with the highest win-loss ratios will automatically progress through
• If two or more competitors have tied win-loss ratios they will be separated on the basis of:
o Head-to-head; o then Margins;o then Points.
• The same procedure is used for the semi and grand finals
FINAL TIPS
READ THE CASES – know what the principles of law are. If you quote a case know which judge you are quoting, and the pinpoint.
CITE CLEARLY – if you do not have a copy of the AGLC…GET ONE!
PRACTICE YOUR APPEARANCES – there is nothing more confidence shaking than forgetting your own name – practice makes perfect
PRACTICE YOUR SUBMISSIONS IN A CONVERSATIONAL STYLE – train as you play. A moot is a conversation, not a speech, so prepare as such.
KEY PREPARATION
Useful Resources - Mooting Handbook
• The Competitions Mooting Handbook is an invaluable guide to mooting
• Contains vital hints, tips and some basic style guides for approaching problem questions and competition nights – it also has example problems and approaches
• If ever in doubt always check the handbook for information!
Questions?
If in doubt don’t ever hesitate to contact
Elizabeth, the First Year Moot Coordinator: [email protected]
Katie, the Novice Moot Coordinator:[email protected]
Or Ashleigh the Competitions Director:[email protected]
