MOOTINGA guide to

Presented byMr. Mahyuddin DaudLL.B (Hons)(IIUM), LL.M (UiTM)Department of LawsCentre for Foundation StudiesInternational Islamic University Malaysiamahyuddin@iium.edu.my

Purposes of this topic

To provide a step-by-step guide to assist students through the process of preparation and delivery of a moot argument with reference made to associated issues

Attention will be drawn, in particular, to aspects of mooting such as formulating a flowing argument, developing a confident oral presentation style, and dealing with judicial interventions.

Is mooting so important?

Think before you speak Improve

Communication skills Research skills Character building (discipline, ability to work

under pressure, perfectionist, diligent, hardworking, energetic, interested, etc)

Advocacy skill Job applications – future career

development

What is mooting?

Mooting involves a simulation of an appellate hearing where the focus of the activity is the presentation of arguments on specific points of law.

A mock trial is an enactment of a first instance trial where the focus is on the presentation of evidence and the examination of witnesses.

Both activities are excellent vehicles for the development of advocacy skills

Differences between mooting & mock trial

Mooting Mock Trial

•Appellate hearing•Focus on the points of law•Usually trials in Court of Appeal & Federal Court

•First instance trial•Focus on examination of facts & evidence•Usually trials in Magistrates, Sessions & High Courts

Mooting is far easier to organise than that of a mock trial

A moot point is one that could be argued either way & revolves around an unsettled legal argument depending on the skill of the mooter.

The Moot Problem

The factual background that led to the dispute.

It involves a fictitious factual scenario set in one of the appellate courts, generally the Court of Appeal or House of Lords.

Two teams of two mooters present submissions for each party and seek to persuade the judge that theirs is the correct interpretation of the law.

Understand the facts

Familiarise with the facts and issues before researching the law.

By familiarising yourself with the point of appeal and the relevant facts, you will be able to undertake more purposeful and effective legal research.

Read the moot problem together

Make use of the facts

Pay careful attention to the facts. Remember that your job is not only to

argue but to use the facts to persuade the judge

Reference to the particular facts of the moot will help you to ground your argument.

Your ability to relate the law to the facts will impress the judge if it is done effectively.

Issues of facts and law

A moot is an argument on a point of law, so there is no scope whatsoever for a re-evaluation of the facts, you must work with the information that is provided.

Facts provided cannot be altered or invented. However, it is common for a moot problem to

have unclear / missing facts Ask for clarification, if possible If not, assume. But minimise your

assumption of facts.

Researching the moot

Mooting is associated with advocacy skills and the ability to ‘think on one’s feet’.

However, counsel may not be able to deliver the submission without detailed research and preparation.

Counsel should do his homework Homework = Legal research

Identify the questions to be answered

Prepare a list of “probable questions” to be asked in the moot later.

It ensures that the counsel is prepared for any questions put forth by the judges.

Enhance counsel’s understanding & be able to answer the question confidently

Judges respect well-prepared counsels - good impression

Sample of questions…

What is the definition of an offer and what are its essential characteristics?

What is the definition of an invitation to treat and what are its essential characteristics?

Is there case law on advertisements in newspapers?

What is the relevance of the finite quantity of items?

If both parties behave as if the advertisement was an offer, does that help my argument?

Preparing your written submission

A submission is a strand of argument used to advance your point of appeal.

In essence, your moot speech will be comprised of a series of submissions, each one dealing with a separate legal issue.

There is no ‘right’ number of submissions The same point of appeal could be broken

up in several different ways, all of which would be perfectly acceptable.

Format of a written submission1. Front page2. Brief facts of the case3. Moot arguments4. Prayers for Relief

Bundle of Authorities (BOA)

It is a document consisting of: Statutes Cases Any articles, official report relevant to the

moot etc

Preparing your speech

You will now be ready to turn your research and planning into a speech that can be delivered to the judge.

Note from the outset that this section refers to the preparation of a speech rather than writing a speech.

This is because writing out every word that you intend to address to the judge is one of the most counter-productive activities that you can do when preparing to moot.

Your speech must include:

Introduction: senior counsel for the appellant introduces everyone, senior counsel for the respondent introduces himself and his junior, junior counsel introduce themselves

Summary of the facts: senior counsel for the appellant summarizes the facts of the appeal and senior counsel for the respondent may do so if there is a discrepancy between the team’s view of the facts

“May it please this Honourable Court, my name is ……, Senior Counsel acting on behalf of the Appellant in this present proceeeding.

OR “If it pleases this Court, I am …….. Together with me today are my learned

friends Mr… Mrs… The respondents are represented by

Mr….Mrs….

Summary of submissions: all mooters must summarise their submissions at the end of their speech

Handover to the next mooter: all mooters should pass over to the next mooter properly rather than merely stopping and sitting down

Reminder of the desired outcome: both junior counsel should close by reminding the judge of what they would like him to do, e.g. ‘I would invite Your Lordship to uphold the appeal and confirm the finding of the court at first instance’.

Some helpful info…

The Level of the Court

There will always be an indication of the level of the court in which the moot will be heard.

Take note of this and ensure that you keep it in mind when researching and constructing your legal argument.

It will be influential in the way in which you use authorities and formulate your submissions owing to the doctrine of precedent.

Layout of the Court

This typical layout shows the relative positioning of the parties in the moot room.

It is important to ensure that the judge can see each of the mooters clearly and that the clerk is positioned so that he can communicate easily with both the judge and the mooters

Layout of the Court

Judge

Appellant Respondent

Bailiff

Time

Each moot will have its own rules concerning the amount of time given to each of the parties to present their submissions, including rules relating to the way that this period of time is calculated.

Order of submissions

Some moots may also stipulate the order in which each of the parties must present theirsubmissions.

Senior Counsel

(Appellant)

Junior Counsel

(Appellant)

Senior Counsel

(Respondent)

Junior Counsel

(Respondent)

Dealing with judges’ intervention

Listen to the question carefully Think before answering the question Ask for clarification Deal with the question when it is asked Provide a clear, concise and confident

answer Ask for assistance from the court Know when to give up

Thank you