Mooting Workshop

Moot Court Bench Murdoch University

Outline

  Research and writing presentation Oral advocacy presentation and demonstration

Written submissions

 1.

Outline: What is a written submission?

2.

3.

What is the format for written submissions?

What are the elements of written submissions?

4.

Supporting submissions with propositions 5.

Conclusions and sign-off 6.

List of authorities

What a written submission is

   Document that a mooter presents to the court outlining the key elements of the party ’ s argument Structures the mooter ’ s argument and provides an authority for each submission made Essentially: skeletal outline of what mooter will say

First page of the written submission

 1.

Outlines: the court in which the matter is being heard; 2.

3.

the number of the matter and the year; the names of the parties involved in the matter; 4.

the party making the submission; and 5.

the name of the counsel making the submission.

First page header example

IN THE HIGH COURT OF AUSTRALIA NO 005 OF 2010 BETWEEN:

HAPPY BUNS BAKERY PTY LTD

Appellant AND

SHOPPER CARD LTD

Respondent

__________________________________________________________________________ APPELLANT’S SUBMISSIONS

(Senior Counsel – John Smith) __________________________________________________________________________

Submissions

  The submissions are the skeleton of your argument Break it down as SIMPLY and succinctly as possible for the judges to read

Elements of a submission

Use the IRAC method:  State the issue    State the relevant law (provide your authority/case) Briefly explain why it applies to the facts Draw the conclusion you want the court to make

Submissions

   Usually, around three submissions will suffice Number of submissions will vary according to the question and your own style This will not necessarily reflect the strength/weakness of your submissions

Conclusion and sign-off

  After the submissions, add a sentence telling the court the outcome you wish to achieve.

Then add the date and sign off.

List of authorities

   Last page of your written submissions Start with the same header you have on the first page Give the cases you have referred to in alphabetic order and numbered

List of authorities: example (without header) ______________________________________________________________________

APPELLANT

’

S LIST OF AUTHORITIES

(Senior Counsel – John Smith) ______________________________________________________________________

Legislation

1.

Evidence Act 1906

(WA)

Cases

1.

Perry v R

(1982) 150 CLR 580 2.

Makin v Attorney-General (New South Wales)

[1894] AC 57 3.

Markby v The Queen

(1978) 140 CLR 108 4.

Pfennig v R

(1995) 182 CLR 461 5.

DPP v Boardman

[1975] AC 421

Before we continue

  Questions?

Next half of the presentation will deal with oral advocacy and courtroom etiquette.

Oral advocacy and courtroom etiquette

 1.

Outline: Courtroom etiquette 2.

Oral presentation of argument 3.

General points on public speaking

Courtroom etiquette

 1.

Outline: Attire and appearance 2.

General rules of etiquette 3.

Seating 4.

Language 5.

6.

Courtroom procedure Taking appearances 7.

Speaking order

Attire and appearance

      Dress conservative Men: suit (if you have one) and learn how to wear a tie – all the way up!

Women: business attire Hair should be neat Long hair - tied back Minimum jewellery

General rules of etiquette

   Never approach the bench when addressing the court If your opponent makes an outrageous argument, you must make no facial expressions whatsoever Have your hands on your lap or on the table – sometimes a good idea to make notes, even if you are just scribbling

General rules of etiquette (cont.)

    No speaking with co-counsel – discretely pass written notes (However, this should not be necessary as you are expected to work individually and should not need to speak with your co counsel anyway) When speaking: hold onto the lectern and keep hand gestures to a minimum Less is more!

General rules of etiquette (cont.)

   Avoid condescension and theatre Modulate your voice to how far the bench is from you Excessively loud speakers come off aggressive and really quiet speakers come off timid

General rules of etiquette (cont.)

  At the lectern, avoid copious amounts of paper If you must, organise a file for the paper, in order to assist you when you stand up to speak

Seating

   From the point of view of the judge: Appellant is to the left Respondent is to the right

Language

  Refer to your judge as “ your Honour ” (To an extent) the more you do this the better

Language (cont.)

   In referring to your Junior or Senior Counsel (also first and second appellant), say “ my learned colleague ” In referring to your opponents, say “ my learned friend ” But always address your counsel or opponent through the judge, not directly!

Courtroom procedure

    When the judge enters, the court orderly will say, “ all rise!

” We all rise We bow to the judge whenever the judge chooses to acknowledge us We then sit when the judge chooses to sit

Taking appearances

    Appearances are simply introductions Judge: “ I will now take appearances ” Senior appellant: appellant, ___ ” “ May it please the court, my name is ___ and I appear with my learned junior ___ for the The senior respondent then gives appearances

1.

2.

3.

4.

Speaking order

Senior appellant Senior respondent Junior appellant Junior respondent

Oral presentation of arguments

 1.

Outline: Case theory 2.

Special role of first/senior appellant 3.

Signposting 4.

Questions from the bench 5.

6.

Common questions asked by judges Closing

Case theory

 A case theory is a brief and catchy statement that reflects the central idea of your argument

Case theory (cont.)

  Have a think about whether you have the moral high ground, or whether your argument upholds the law without question, etc Have a think about logic or common sense behind the law you ’ re arguing (this is often referred to as the “ policy ” behind the law)

The special role of senior appellant

 There are two things that a senior appellant does that no other speaker gets to do

Firstly

  They offer the judge a summary of facts Something along the lines of “ Your Honour, before I proceed, would the bench like a summary of the facts?

”

Secondly

  Dispensing of formal citations After the senior appellant refers to their first case, s/he will say “ Your Honour, I ask that we dispense with full citations ”

Dispensing citations

    The judge will then usually say, “ yes, that ’ s fine ” .

The purpose of dispensing citations is so that the senior appellant and every other speaker may refer to cases in a abbreviated form  Eg instead of saying “ In Balmain New Ferry Company Limited and Robertson 1906 volume 4 of the Commonwealth Law Report page 379 at page 384, Chief Justice Griffith held… ”  You can just say “ in Balmain Ferry at page 384, Chief Justice Griffith held… ”

Signposting

 “ Signposting ” is the skill of keeping the judge/s aware of where you are in your arguments

Firstly

   Outline your arguments for the judge in your introduction “ Your Honour, we submit ___.

” “ We support this submission by way of 3 propositions Firstly… Secondly… ” and so on

Secondly

  After the introduction, make it clear to the judge where you ’ re going “ Your Honour, moving now to my first submission ”

Thirdly

    After making every submission/proposition, make it clear where you ’ re going “ Turning now to my first proposition ” “ Moving now to my second proposition ” “ Turning now to the second submission your Honour ”

Signposting

   Remember, mooting is about assisting the judge in understanding your argument The judges are your friends This ties in with questions asked from the bench

Questions from the bench

   This is where the best speakers become apparent Moots are often won by how well a mooter can answer a question from the bench Answering questions is about how persuasive you can be, not how book-smart you make yourself out to be

Questions from the bench (cont.)

  A good answer to a question requires a good knowledge of the law and an awareness of the ins and outs of your argument.

A good answer is one that is clear, simple and answers the

judge

’

s question

Questions from the bench (cont.)

   A simple and direct answer can easily be achieved by first stating, “ Yes your Honour ” or “ No your Honour ” Depending on the question, sometimes this is all that is needed But beware, it may not be needed at all – remember to let yourself soak in the question

Questions from the bench (cont.)

   If the judge pushes you to a point where you can ’ t answer the question anymore, then admit so “ Your Honour, I cannot take this submission any further ” Treat this as a last resort

Questions from the bench (cont.)

   Always wait for the judge to finish their question Take a few seconds to pause and think about your answer – do not panic When you are speaking and you see that a judge wants to ask you a question, then pause and let them ask you

Common questions from a judge

    “ What are the facts of that case?

” “ Where in the case can I find that?

” “ Which judge said that?

” “ If, hypothetically, we don ’ t accept your submission, where does it leave your argument?

”

Closing

   A good closing will highlight the good points you have made in your orals Also highlight the weaknesses/inconsistencies that your opponent has or will make.

“ In conclusion your Honour… ”

Length of the oral argument

   Will vary according to the competition In this instance, each student will be allowed 20 minutes to present their argument to the bench There is no time allotted for rebuttal or surrebuttal

Length of the oral argument (cont.)

    You may ask for additional time if necessary: Example: “ Your Honour, I see that my time is about to expire. May I have another 30 seconds to conclude my argument?

” However, you should avoid this if possible Read the bench. They can say no

General points on public speaking

    Grip the lectern!

Speak slowly. Remember, one can always speak slower.

100 words per minute is a good pace Maintain eye contact - the best speakers will have maximum eye contact as they know their arguments inside and out

General points on public speaking (cont.)  Avoid reading – again, maximum eye contact is a result of a mooter knowing their arguments inside and out

Further references

 http://jessup.whitecase.com/multimedia/ most important aspects of mooting.) (contains a series of moot excerpts from the Jessup competition that are designed to give new competitors relevant examples of the  http://www.law.murdoch.edu.au/mcb/publications.html

(further mooting tips and publications produced by the Murdoch University Moot Court Bench)

And last, but not least…

 Have fun!