Know Your Judge!
From Learnmore
This page gives you guidance about that all important feature of a moot - the judge. Thanks to Vicky Ailes and Ben Wood for this lively piece.
Intro
The judge is the most important unknown quantity in any moot. Find out as much about him as you can before the day. Is he a lecturer, a postgraduate student, a practising barrister or solicitor, or a real judge?
When the moot starts, see how the judge interacts with the mooters. Is he asking questions? Does he know the area of law well? Is he giving any clues about which of your opponents' arguments he thinks have most merit?
Ideally, you should be able to adapt your speech to suit the judge. Spend extra time explaining the basic legal principles if the judge doesn't seem familiar with them or if you know that the mooting problem is not in his area of expertise. On the other hand, only cover them briefly if it has become clear from judicial interventions in earlier speeches that he knows this part of the law well. You should also try to spend more time dealing with arguments which he thinks are particularly strong, whether for or against you.
Judges vary enormously and it is much harder to do a good moot before a bad judge. Below are some strategies you can adopt with difficult judges.
The Quiet Judge
Seems to be paying attention but asks no questions, or may ask each mooter a single question at the end of their speech.
This sort of judge is often welcomed by beginners who have written out their speech longhand and would prefer to read it out and sit down as quickly as possible. However, experienced mooters will hope for frequent judicial interventions during their speeches. It is much easier to argue your point effectively if you can pick up clues from questions about what the judge is thinking. Moreover, mooters of every standard tend to speak more naturally and effectively when answering questions than in prepared speeches.
Try to encourage the judge to intervene. You can involve him in your speech by asking him quite detailed questions: "Is your lordship familiar with the dissenting judgment in this case?"; "Would your lordship like to hear [further] argument on this question?". Even if the judge does not take the hint and ask you more questions in return - and some judges don't think it's fair to interrupt one mooter more than the others - you have showed that you are prepared to adapt your speech to his answers.
The Bored Judge
Asks no questions; doesn't look at the speaker; doesn't seem to be writing very much down. Snores occasionally.
Sometimes, a judge has simply had a hard day in court herself and is tired and finding it hard to concentrate. In this case the aim is to get the judge to sit up and start enjoying herself again, prefereably before you launch into any complicated legal arguments. The most boring speeches to listen to are the ones where the speaker himself doesn't seem interested, so try to sound like you're having fun, even if you're not. Smile, make lots of eye contact, and vary your pace and tone; make your points as entertaining as you can. As with the quiet judge, try to encourage interventions. With any luck she will start to wake up if you ask her a few questions.
The Bemused Judge
Asks very few questions, which don't seem to be on point. Writes frantically and seems to be flicking through your bundle at random.
The judge is lost. He may be finding the arguments difficult to follow, particularly if he doesn't know the law very well. While most judges will just ask for clarification in this situation, some will get embarrassed and try to hide their ignorance. If a point comes up that they are familiar with, they will probably take the opportunity to ask about it even if it's not relevant. This sort of judge intervenes only when he's comfortable with the material you're covering so the way to encourage relevant questions is to cover the basics thoroughly.
If you suspect that the judge isn't following your arguments, slow right down and pause frequently to let things sink in. Remember that listening to legal submissions is harder than reading them and bear in mind that the judge may be trying to skim-read the headnotes to the cases at the same time as listening to your speech.You may have to give the really important points at close to dictation speed. Pay particular attention to explaining your structure and signposting your arguments and be clear about which point on your skeleton argument is being covered by your speech. Even if the judge says he is familiar with a case, try to make it obvious from your speech what the important points it makes are, if you can do so without sounding condescending. If you are asked about something irrelevant, give a brief answer if you can, and say briefly why it isn't relevant ("with respect") but move on quickly.
Although this sort of judge is somewhat disappointing from a mooter's perpective, it can work to your advantage. If the judge understands your arguments but doesn't understand the other side, you're much more likely to win!
The Mean Judge
Interrupts frequently with stinging criticisms of your case. Does a better job of rubbishing your arguments than the other side do. Scolds you at length if you make a mistake. Comes across as rude.
This sort of judge wants to see if he can put you off, either with his manner or with a barrage of counter-arguments. Don't take any of his criticisms personally, and don't assume you're doing badly: in fact, the better you're doing, the nastier this judge will be. Stay calm and refute his points as politely as you can. You may have to alter the order of your speech to do this: one thing the judge is looking for is flexibility.
On the other hand, don't let yourself get too sidetracked by dealing with his interventions: you need to demonstrate that you are still in control of your submissions. Remember that you're trying to show off your mooting ability, not to win on the law. Don't fall into the trap of spending too much time on your weakest points. If you've covered something fully and the judge indicates that he is still unpersuaded, thank him and move on to the next point.
Since you may have quite heated exchanges with this sort of judge, be particularly careful with your etiquette. Remember to stop speaking as soon as the judge interrupts, and make sure that when you contradict him or refute his points - as you certainly should - it is "with the greatest respect". You will also have to be careful not to express a personal opinion: stick to "in my submission". Equally, remember that the judge's observations are not submissions or suggestions - they are rulings!
Aggressive judges normally undergo a complete personality change as soon as the moot finishes, and turn out to be quite friendly. They often give particularly good feedback.
The Leading Questioner
Often spends more time talking during your speech than you do. Asks rambling questions which seem to be designed to encourage you to make particular points, but which it is often impossible to make sense of.
This judge has already decided what arguments he thinks you should make. Sometimes, of course, he is right, and you have really missed an important point. Sometimes it will be an argument you were intending to make later in your speech. On other occasions, it will seem to be obscure and off the point. It may even be based on a misunderstanding of the law.
If you don't understand the question, ask for clarification. If you still don't understand, reformulate what you think the question might be and ask if you've got it right. There is no point trying to go on until you and the judge understand each other.
You do need to deal with the questions asked; the question is how long you should spend doing so. If you had anticipated the point but intended to make it later it is acceptable to say so and go on as planned; if it is brief or you are at a convenient point to make it then it can be dealt with straightaway. If you had not anticipated the point, then you will have to exercise your judgment. If the judge thinks that a particular argument is crucial to the case (whether it really is or not) then you will lose marks by failing to mention it. On the other hand, your best material is bound to be your prepared material and you do not want to spend too much of your time covering unfamiliar ground. It may not even be a very good point - but conceding a point which the judge thinks goes your way is unlikely to win you many marks even so!
If you decide not to try to make the argument, tell the judge so. You may be able to point out that it is inconsistent with some of your other arguments or that the other side have not addressed the issue either.
Multiple Judges
Addressing more than one judge presents its own problems. Very often, you will find that one judge takes the lead in asking questions and it is very easy to find yourself addressing most of your speech to just one judge. It is worth making an effort to make eye contact with each judge separately during your speech and trying to get them all involved.