A guide to mooting part 1

About Mooting
Mooting is the presentation of a legal issue before a judge and probably the closest thing you will experience to a real court. Mooting is not a trial of fact; it is an argument on points of law and usually heard in the higher courts such as the Supreme Court. You cannot invent facts and you can’t argue outside of the grounds of appeal – you will get struck out by the judge or lose significant marks.

There are two grounds of appeal one of which is argued by the senior (also known as lead) counsel, and the other by junior counsel.

Moot question
One of the first things you will be given in a moot is a question. These questions are normally problem questions. These questions are produced in a way that there will always be grounds for arguments to be made by either side. However, sometimes the question at hand may favour one side particularly and this is something that will happen to you from time to time. Do not be disheartened that you have the weaker arguments as you may find that as you begin researching your arguments they actually begin to turn in a strong argument.

Firstly, read the question carefully. I would advise to read it over several times as I can guarantee that you will miss something the first time you read the question. There has been one occasion where I have been watching a moot and I read the question again afterwards where it has occurred to me that neither side has argued on a particular point. Once you have identified the legal points, you now need to choose which legal points you are going to use.

Skeleton Argument
A skeleton argument is a document which is an overview of a case outlining and identifying the legal points on which both parties wish to dispute. It is then a matter for the court to decide which party has the stronger legal points. I have attached some examples of a de-constructed skeleton argument at the bottom of this post to show you what one looks like.

Submissions
if you are acting as senior counsel, I would suggestion no more than 3 submissions. Because you have a limited time on your arguments sometimes less is more. The fact that you only have 20 minutes to present your argument means you will not have time to argue all the points you wish. You are better off arguing two or three points well instead of rushing through 5 or 6 points.

Always make sure that your submissions make sense and that they do not contradict each other. If possible see if you can have someone read through your submission as what may make sense to you may not make sense by others.

Do not cite textbooks as you are likely to get a good telling off from the judge. Always cite from law cases / reports.

Always check for spelling errors, grammar etc. While it is easy to gain the best marks on your skeleton argument, it is also the easiest area to lose. By failing to check your spelling or grammar you will lose marks very quickly. For example, citing the wrong case name could lose you precious marks.

Finally, always fit your skeleton argument onto one A4 sheet of paper.

Cases & Materials
Do not use textbooks as mentioned above. Always use primary sources (cases and statutes. Also note that there is a hierarchy of official law reports and if you are using a case that is reported in these, then you must cite these first. Again, you will lose marks if you cite the case from one report where it is found that it has been reported in the official reports. Westlaw will give tell you whether or not it has been reported in the official reports. Below is the hierarchy of law reports. If you are using LexisNexis, it will only give you cases from the All England Law Reports so it is therefore best to check Westlaw first.

If you are going to cite articles, you need to know two things. First of all, you need to know the author. If you cite an article written by an author the judge is likely to say “who is he/she?”, You need know what status they hold. For example, the author may be a practioner in a specialist area. Secondly, you need to inform the judge that the article is not binding but of persuasive authority – you do not want to get any sarcastic remarks from the judge such as “why should I take this into account”.

Another thing to be aware of is never cite from head notes, always use leading judgements. Head notes are a summary of the facts of the case and also a summary of what the court held. Using head notes is a big no and judges will not look favourably if you cite from them.

Finally you will realise that there will be cases against your argument – you cannot ignore these cases as they are likely going to be used by your opponents. It is best practice to read through these cases to anticipate what your opponents are going to argue so that you could use this as part of your rebuttal at the end. You may also be able to argue that the cases used by your opponents can be distinguished from the facts of the case at hand.

Part 2 to follow ...