This page hopes to provide answers and reassurance to those LearnMore users who are a bit nervous about their first moot. It responds to the most common mooting confusions. Thanks to City Law School CPE alumni, Vicky Ailes & Ben Wood.
Although your approach should be the same wherever the moot is set, there are certain obvious considerations that need to be borne in mind. For example, which authorities are binding on your judge and which are merely persuasive? Remember, too, that policy arguments tend to work best before the House of Lords, who can overrule any authority if they are sufficiently persuaded of the reasons for so doing.
It would be very unusual to find a moot problem that contained as comprehensive a summary of the facts as a real case. Although it can be very tempting to speculate on missing facts when formulating your submissions, you should avoid doing this at all costs. On the other hand, it is perfectly acceptable to say something along the lines of “It is submitted that R v. Y is analogous to the instant case, although it is not clear from our facts whether the respondent actually knew that the gun was loaded”.
Similarly, you should never dispute the facts of the problem or the first instance findings. The moot will be set in an appellate court, which (save in exceptional circumstances) does not undertake a re-examination of the facts: it decides contested points of law. To say something like “Green J found at first instance that the appellant did know about the crack in the wall, but this is impossible since…” would be to commit one of mooting’s deadly sins!
This one’s tricky, and depends primarily on which court is the setting for the moot (see above). One thing that’s certainly true is that you should never argue solely on policy grounds – or even base your primary submission on a policy argument.
Beware the fallback of the ‘floodgates’ argument: I once heard a (real) judge saying that he groans inwardly whenever counsel argues that he should rule one way or another in order to avoid opening the floodgates: he is strongly of the opinion that this is just about the weakest argument that can be put, and should be saved for the bottom of the barrel. Having said that, moots aren’t in the real world, and you’re trying as much to impress the judge with the breadth of your expertise and research as you are with the acuity of your argument.
Hansard, the Official Report of Parliamentary proceedings, can be very useful in a moot that has legislation at its heart and requires some statutory interpretation.
I’d recommend that you use Hansard sparingly. If you do refer to it in your submissions you must – in theory, at least – provide a complete copy to the judge, and probably, in fairness, to the other side. That could be tricky (and vastly expensive). You’re probably best off finding a textbook that collects the most important bits of Hansard (there is a very good one on the Human Rights Act 1998, for example) in one place, apologising to the court for taking the easy way out and giving the actual Hansard references of the passages that you’re using, to show that you’re not making it up.
Almost certainly your checklist will include the following:
Hopefully, your opponents will give you a run for your money and will therefore enable you to perform at your best and to score an honest victory. Unfortunately, there are some occasions when your opponent appears completely to have missed the moot point. The first question, of course, is whether it really is your opponent who has missed the point!
If the answer is yes, then your best bet is to focus on your own submissions: it is extremely unlikely that the judge will tell you not to trouble yourself! Indeed, it’s worth remembering that your job is to win on the strength of your advocacy, not on the point of law.
The practice direction from Lord Woolf in 2001 noted the following:
3.1 For the avoidance of doubt, it should be emphasised that both the High Court and the Court of Appeal require that where a case has been reported in the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales it must be cited from that source. Other series of reports may only be used when a case is not reported in the Law Reports.
This is a question that can only be answered by an individual for himself. For example, I moot with two skeleton arguments in front of me (mine and that of my opponent), while one of my mooting partners usually has several pages of A4 typed notes with her.
Whatever you choose to use, you need to be confident that you will be able to jump easily between sections, that dropping the pile wouldn’t be the end of the world and that the notes are not going to distract you or the judge.
If you have the chance, experiment with different styles of notes, so that you can work out which is most effective for you. One to try, and which might make you appear most barrister-like, is the list of subject headings (possibly with a note or two) on a couple of pages. This way, you can cross them out as you cover each of the points, can keep the submissions in a preferred order unless interventions do not allow it and run no risk of repeating yourself, since there’ll be a big black line through any points that you have made out of sequence.
Additionally, it is perfectly acceptable – and good practice – to depart from the thread of your skeleton in order to deal with your opponent’s submissions. In other words, consider an argument fair game if it’s raised either in your skeleton argument or in the submissions (whether oral or written) of your opponent.
There are often rules governing the use of extra materials that you have not listed in your skeleton argument, and these should be strictly observed. At least one competition states that any material may be used to respond to a judicial intervention or question. Thus, if you have an article or case that you are very keen to use, but haven’t included it on your submitted list, you can try to goad the judge into asking a question which permits the ‘here’s one I made earlier’ response! Try to avoid making this too obvious, though, as the judge is probably wise to this sort of sophistry.
It is not advisable to start introducing new lines of argument that bear no relation to your skeleton argument and do not arise directly from your opponent’s submissions: the judge is likely to shut you down when she realises what’s going on, will tell you that she intends to ignore that submission and your time will have ebbed away.
There are two possible reasons for this sort of intervention: either the judge is trying to test your abilities, or he does not know the law. Either way, you need to bring him gently but efficiently back to the point. Try something like “I’m grateful for your assistance, my Lord, and I apologise for not having expressed myself clearly…” or “I hadn’t intended to deal with that point, my Lord, as it is not one of the grounds of appeal. However, I am more than happy to go away and research the point, if your Lordship so desires”.
You don’t want to allow the judge to drag you off the point (whether deliberately or inadvertently), as it will show that you are not in control of the situation, that you cannot recognise a red herring when it is thrown at you and you will waste precious time.
You may think that you appear foolish by asking the judge kindly to repeat his question, but you will look considerably more foolish if you appear to reflect sagely for a few moments (while a flurry of confused thoughts flies through your mind) and then pronounce authoritatively that the answer is “yes”, thereby fatally undermining your submission. Don’t be afraid to ask the judge to repeat himself if his question is worthy of the Times cryptic crossword, or even if you simply didn’t hear it properly.
If the judge errs in law during his judgment, it is probably most diplomatic simply to ignore it and to rest assured that you will make a better lawyer than him. If, on the other hand, he makes a mistake during your submissions, and it is at all material, you should endeavour to correct him. I find that a quotation is often the most painless and face-saving way out of this situation, since the judge really shouldn’t feel too put out if he is put right by the words of his noble and learned friend, Lord Brown. A mooter should definitely be sensitive to the judge’s ego, as he will be much more likely to award points to the side that has established the best rapport with him.