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!