Difference between revisions of "Mooting FAQs"

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.

Does it matter which court I'm in?

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.

What do I do if the facts in the moot problem are incomplete or otherwise unsatisfactory?

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!

What policy arguments support me?

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.

When may I turn to Hansard?

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.

In order to be able to refer to Hansard, you need to demonstrate to the judge that the plain meaning of the words of the statute (the black letter) is ambiguous: this is usually a formality, but one that’s worth mentioning in order to show that you’re on top of constitutional niceties. The only people whose words carry any weight, however, are those of the promoter of the Bill and the relevant Ministers: you’ll get into hot water if you start quoting the (apparently helpful and decisive) words of the Opposition spokesman or a Government backbencher.

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.

What should I take along to the moot?