ViVO T2x « Manjoor Garhi, Uttar PradeshNiel Pade) Manjoor Garhi, Uttar Pradeshsamen FILE OF MOOT COURT thing as winning the moot. The law mai ther. For example, the appellant may have a stronger 0ase than the respondent, but this nC the moot. On the contrary, counsel for does not mean that the appetiant is bound to win greater mooting and advocacy skils than counsel therefore, the same yy often, unless the moot i, ‘iiantly written, favour one side more than the ot the respondent may demonstrate far {for the appellant. As a result, counsel for the appellant will receive lower marks from the 1 for the respondent will win the moot. Thus in legal terms can still emerge vietorious in a moot. The judges have an easier argument than the other and s well as judges, and counsel even a mooter who has 2 very difficult argument will generally be aware that one side may wil normally take this into account when judging or assessing the moot much ofthe skill in mooting is to adopt a style that is some, this comes naturally; for looting, mock trials and debating there is 2 degree of overlap between these three important differences. As has been stated above, @ a trial of the mastering the relevant law, ropriate to a court setting. For persuasive and app! others, this requires much thought and practice. Mi compared and distinguished Whilst activities, there are also some very me thing as a mock trial. The moot hearing is never ag one would see in a court of first instance. Moofing never subsequent examination in chief and cross- examination, It does not involve making speeches to juries on which version of the facts sult, the style expected in moots is a rather less impassioned style - in a trial or mock trial. Nevertheless, there are moots. The most obvious is that both involve epee agesazalpn a court of lowe Te moc Ue ea lag the trial at a first. ingtance court, and the moot simulates a hearing in one of the,appeal courts, as stated above: and both involve the participants demonstrating the important skill of adopting erisms and speech that are appropriate to appearing in court 2s @ lawyst. titioner may have a mixture of ¢ s, both trials and appeals aera ere moot is not the sat factual issues in a case, involves the calling of witnesses and th to accept. As a re: than might be expected from an advocate i some similarities between mook trials and Manjoor Garhi, UttarPRACTICAL FILE OF MOOT COURT - fo understand and argue the law. A general understanding demonstrating some ability ly in mooting. Instead, it ts will rarely be enough with either of these activities, particular! law in a more detailed way than most law students do in necessary to engage with the ‘a moot is different from a debate, ce Perhaps more obviously, not necessarily a legal one. Like mooting, debating involves public speaking in ihe form of speech making and responding to ig, debating does not involve a highly by the other side. Unlike mootin mooters do,have some freedom in preparation for tutorials et in that a debate can be on any issue, points made stylized form of speech. As will be discussed later, terms of their own personal style. However, debaiers undoubtedly have more freedom than mooters in terms of adopting style which suits their own an introduction to mooting § personalities and way of speaking: ‘Tie obvious reason for, this is that the debater is not confined by the conventions and traditions of courtroom speaking. WHAT |S MOOT COURT? The moot ‘court’ should reflect, as far as possible, a courtroom scenario in reality. The moot is presided over by at least one j moot on the law and on the result of the moot itself, The presiding judge is supported by for providing the judge, when reauired, with a udge who delivers-a judgment at the end of the the clerk of the moot who is respons! thority cited by the mooters in the course of their arguments. The ters sit at separate tables, copy of each legal aut clerk also times the moot speeches. The two teams of taking turns to stand to present their arguments to the moot court. ‘A moot ‘speech’ will normally have a time limit of between 15 and 20 minutes. So be prepared to be on your feet, either presenting your argument or answering questions. ‘about your argument, for that amount of time. For the duration of their arguments the mooters are required to maintain the appropriate courtroom manner (remembeni'd, ‘amongst other things, to address the court and fellow counsel in the accepted form). Further to add a touch of authenticity to the moot, the participants are often required fo ‘Wear gowns. a. iiaNIN .o ll Paco) Manjoor Garhi, Uttar PradeshPRACTICAL FILE OF MOOT COURT heard the case; (2) the decision endered in the trial court; (3) a description of any proceedings in an intermediate level appellate court; and (4) a description of how the case got to the appellate court before which it is pending (e.g., by direct appeal, on a vrit- af certiorari, etc.). The Statement of the Case will'also indicate key legal authorities relied upon andlor rejected by the trial court. The procedural posture of the case is crucial Students should be thoroughly familiar with its history and the standard of review that the appellate court will apply... Statement of Facts The Statement of Facts presents the facts relevant fo the case Deing argued. The facts, appearing in the Statement of Facts and in the exhibits must be accepted as given. Participants must not stretch the facts or specuiate about facts which are not included. Remember that the arguments are being made before an appellate court; participants must urge the court to apply relevant law to the facts given, not to delormine the existence, truth or falsity of those facts. c.,* Court and Jurisdiction, 1. Real Courts and rsdictions Moot Court. Problems are-set in a real court aff jurisdiction, such as the State of California or the courts of the United States. The appellate structure of each jurisdiction differs, and participants must be familiar with the appropriate jurisdiction's structure. Participants shoud be aware that a case's persuasiveness is dependent upon the case's jurisdiction and court. While prior decisions of your court are binding, decisions of other courts (lower-courts front your jurisdiction or courts from other jurisdictions) will, only be persuasive. In either instance, of course, you shouid address any persuasive case law which helps yout client's position, 50 long as you do so in addition to addressing binding authority. 2. Fictitious Courts and Jurisdictions Some Moot Court Problems are set in a fictitious jurisdiction, such as a make-believe state or a non-existent United States *Fourteenth" Circuit Court of Appeals. If you get such a Problem, your clfent’s ase is one of first impression in that jurisdiction. Thus, all relevant case law is equally persuasive. Vivo T2x « Manjoor Garhi, Uttar PradeshNIN .oll Paco) Manjoor Garhi, Uttar PradeshVivo T2x Manjoor Garhi, Uttar PradeshNiel Paes) Manjoor Garhi, Uttar PradeshNiel Pac) Manjoor Garhi, Uttar PradeshNell Pda) Manjoor Garhi, Uttar PradeshPRACTICAL FILE OF MOOT COURT y such as case Jaw. A superficial engagement with a source, such as a case of a treaty, will usually not be enough. The mooter will normally, be required to read the full judgment or text, and fo be able to refer to passages the refrom in order to support his or her submissions. 5.Your knowledge of the court hierarchy and the doctrine of judicial precedent wif tell you that point 5 abave is important, because the level of court in which you are mooting will determine what arguments can be employed. For example, if you are mooting in the Court of Appeal, as in the example above, you will’be bound by any relevant House of Lords’ decisions and, possibly, by decisions of the Court of Appeal in previous cases. If your moot is in the’ House of Lords, then you have more freedom, as the House of Lords is, of course, free to depart from its own previous, decisions since the Practice Statement [1966] 3 All ER 77. Some law students, quite wrongly, seem to regard these basic principles as somewhat beneath their radar. The reason for this is that these issues are normally studied at the very beginning of most lav: courses. By the time that most students start mooting, they wil already be immersed in the detail of substantive legal subjects, such 2s contract ‘and tort. As a result, these vital principles can sometimes be forgotten, or relegated in the mind of the law student, fo a lower level of importance than should be the case. This applies especially to tess meticulous students, who rely solely on secondary sources of law, such as the recommended terts for their course of study. For moreon knowledge of aspects of the legai system, and their relevance to the mooter, ‘< 6. Clearly this is vital as, without this information, the mooter would have no basis for his or her preparations and submissions. This will also tell you who your opponent is and who, if applicable, are your teammate. ” ss 7. As with the facts, as stated above, you are pretty much ‘stuck with the, grounds of appeal. if you are counsel for the appellant, these will tell you the legal basis on DTT er Os lauaco lela)CT elem Cr els aac le)PRACTICAL FILE GF MOOT COURT Rv Owen Owens In January 2008, Meg: Glenys, in a small hospital in a remote country district in Mid-Wales.The twins an Morgan, aged 18 and unmarried, gives birth to conjoined twins, Glen and are joined at the waist but are otherwise perfectly formed, although Glen, the weaker of the two, fas substantial and serious breathing difficulties and is diagnosed as requiting major heart if he is to have any long-term hope of survival. A week after surgery in the near future ine hospital, who has the reputation of the birth, Dr Owens, the senior consultant at ti being a brilliant but unorthodox . intends to operate in order to separate- surgeon, informs his junior colleagues that he 1 has adequate facilities for ~ the twins. His colleagues are uncertain whether the hospi of equipment or surgical and nursing staff with the such an operation, either in the f he operation shoud necessary expertise, and that, irrespective of where it takes place, t be delayed until the twins have grown stronger, particularly Glen who would have little chance of surviving such an operation at this time. However, Or Owens insists on performing the operation, asserting that, if Glen were to die before the twins are separated, “Glenys would die also, and that a suocessiul is nature would be of enormous benefit,financially to the hespital and to operation of thi: ive, her consent to the the medica! careers of all concerned. Megan refuses to operation and applies for a court order restraining the hospital frem carrying it out, but before any judicial hearing can be arranged the operation is performed by Dr Owens, with the unwiling assistance of his colleagues, Glenys survives the operation, but Glen dies as a result. Dr Owens is subsequently charged with murder in respect of Glen's death, At the trial at Llareggyb Crown Court before Evans HHJ, expert medical evidence is given for the prosecution to the effect that it was extremely inadvisable to undertake such an operation in such circumstances so soon after the birth of the twins. On the other hand, the defense was able to call evidence that there was an immediate danger to both their lives at the time, as Glen was so ill and could have died at any time. Itwas accepted by both experts that, had Glen died at any time before the separation that ViVO T2x 15 Manjoor Garhi, Uttar Pradesh3 Ss VIVO® q EIT): aaa lela)2 The decision of the lower court, in this case Llareggyb Crown Court, was to convict Dr Owens of murder. Evans HHJ was the judge who will have directed the jury on the relevant law. 3. As this is a decision of the Crown Court, we:do_ not know the jury's precise legal Feason(s) for convicting Dr Owens. However, we do know the pronouncements that Evans HHJ made on the law, presumably in his summing up to the jury, and et other points during the trial. The basis of an appeal in this type of case will: normally be the appellant alleging that the jury made their decision with the wrong present immediate threat to the life ofeither the accused himself or any third party at the:time of the act Which results in death, Dr Owens appeals to the Court of Appeal, asserting that: 4. Evans HHJ was incorrect in-his direction as to the basis of iiability for murder where there is no evidence of any intention to cause death or really serious bodily harm. nce of a legally acceptable basis of liability for murder, bility of a defence of necessity 2. Even assuming the exister Evans HHJ misdirected the jury as to the non-avaitat sinco, in the light of RE A (CHILDREN) (2001), CA, distinguishable from the circumstances of the present case the situation in R v DUDLEY & STEPHENS ise ion as to the inadmissibility of a plea of self- or private 3. There was equally misdirecti defence, fy side should argue point 1 of the appeal; junior counsel shoutd 1g Jaw was given to Leading counsel for eacl argue points 2 and)3, law ringing In thelr ears. Because the wron: them it would, no doubt, be argued by an appellant that the jury were unable to direct minds to the ‘correct legal issues. As a°result of this, they reached the wrong verdict, Alternatively, it might have been that the judge made rulings on the applicable in the Court of the absence of the jury, which the appellant now wishes {0 conies! 4 to 3 of thepart of the moot 7 faw in ‘Appeal. Evans HHJ gives his legal reasoning in points Niel Paes) Manjoor Garhi, Uttar PradeshEE Yr fe ie i PRACTICAL FILE OF MOOT COURT tin : problem that starts with the words “Evans HHJ held | i views on the applicability of the law on intention in murder, and | tt } defence and necessity, to the facts of the case. The appellant \ submitting that this application of the law was incorrect. Note that, as, appeal,Dr Owens transforms from being the defendant at the.< appellant. The party contesting the decision of the lower court is always t f and the party defending itis always the respondent. 4.As well as providing his views on the aj pplication of the law to the facts, also provides legal authorities, in the form of cases, to support the 5. In criminal iaw terms, decision of the Crown Previously, | VIVO T2x es VEMCaccu Melee T|Vivo T2x Manjoor Garhi, Uttar PradeshiN ol Poe Manjoor Garhi, Uttar PradeshVivo T2x Manjoor Garhi, Uttar Pradeshthat are not part of their case. Needless to say, this fl much time researching issues : oting. The legal profession only operates effectively g an ethical way to go about mi the basis of the integrity of its membergeIf you intend to join the legal profession, yo. must develop a good sense of what is ethicalyAdditionally, most judges will take a very dim view if they suspect that such sharp practices are being employed. Some judges may algo deduét marks if you do not refer to authorities you have listed, without adequate explanation. The basic cule is, therefore, that you should only include authorities in your list if you really do intend to refer to them. 2, Submission of skeleton arguments There are some moots that require all participants to submit a skeleton argument at some point before the actual moot hearing takes place. The idea behind this is that the judges will know in advance what the nature of the submissions for both sides will be, as-well as what authorities they will rely on to back up those submissions. For more on skeleton arguments and tow to go about writing them, see THE FORMAT OF A COT After the main submissions from the four participants, counsel for the appellants are normally given a brief right to reply to the submissions raised by ihe respondents. The reason for this is that one of the skills of. mooting, and advocacy generaily, is the ability. to respond to submissigns made by the other side.When the appellants mate their submissions (if done in the order above), they will not have heard the respondents" submissions. As a resuit, they are given a brief amount of time to do this at the end of the moot. Counsel for the respondent are expected to deal with points + appellants in the course of their submissions as, by the time they "already have heard the appellants’ submissions. Note: some insti may deviate from the running Omer Sf speakers sugested ab order, the Hahts of reply for b -COunse! for PEI Ce ee mela laa 1s |-%CT elem Cela)Vivo T2x Manjoor Garhi, Uttar PradeshWiel Pa ac) Manjoor Garhi, Uttar PradeshVIVO T2x¢ Manjoor Garhi, Uttar Pradeshvivo T2x« Manjoor Garhi, Uttar PradeshVivo T2x« Manjoor Garhi, Uttar PradeshVivo T2x« Manjoor Garhi, Uttar Pradeshhi PRACTICAL FILE OF MOOT COURT ~ make a hash of their submissions, then there is very little th Having said all of this, itis certain If an advocate is going to their friends or team members can do to save them. true that teamwork can play a big part in the way that a mooler Prepares: Normally, in moot there will be 2 senior and a junior counsel for both thee respondent. It is ad e that y guid use yo “or fe eer preparation as somebody to “pounce” your ideas off. Two heads are normally bette than one, and itis kely that some submissions or ideas, which strike you as a good 2 first, will not seem as good after some. discussion with a team member=Many students, of course, do not avail themselves of this potential advantage, perhaps because they do not know, or trust, their partner. This is unfortunate as, in practice, it js often the case that_ more than one lawyer will be involved in a case. For example, in many cases, a client will instruct both a solicitor and a barrister, who will have to try to work together effectively as a team, whether they like it or not. As a result, even the greatest of advocates do sometimes suffer from a lack of ability to work as an effective part of a team-Try to develop this ability early in your career through mooting, if possibi 6. Engaging with primary sources of law One excellent aspect of mooting is that it obliges you to really engage with primary sources of law such as cases and statutes. Many law students, and some practitioners, are far too reliant on secondary sources of law, such as textbooks and practitioner texts: ‘As a resuit, they seldom actually consult a primary source without the help of a middleman, in the form of an author. One of the big benefits of mooting is that it obliges: you to use primary sources, and use them in a creative’ way to actually construct submissions for your fictitious client. All of this is essential if you are to practi lawyer. It simply will not do to stand up in court and refer to a casé simply by refere to what a textbook says on it’ The jules will expect you to have read the case able to refer them to passages ing! “suppx Additionally, it may be that, if you aresources to find and interpret the law themselves. Instead, they relish the opportunity to do so. Weaker lawyers always require guidance fiom secondary sources like textbooks, and are often uncomfortable without ths safety net. Mooting allows you io become one of the former, by developing good habits early on. CONCLUSION moc en ‘An appellate brief is a critical component of winning an appeal. Typically, the briefing icant stage of an appeal takes place over several months. More importantly, a signif percentage of appeals are decided on the biiefs, either without oral argument or where oral argument has little cr no.effect upon the cour’s opinion. Also, parties are generally prohibited from raising arguments orally which were not first fully addressed in their brief. The briefing stage of the Moot Court Program reflects the importance of real life appellate briefs. There are, however, several important differences between Moot Court briefs and appellate briefs in practice. First, although judges will receive each + participant's brief for use during oral arguments, participants will not be “judged” by their briefs and cases will not be decided on the briefs. Second, participants will not bee precluded from making arguments orally which were not addressed in their briefs. Keep 77a mind, however, that the quality of a participant's brief may give a judge an idea of the quality of his or her oral argument, evén beforé the argument is made. Moreover, the judges are prominent members of the legal community who wil likely recall the quality of your brief should you ever find yourself meeting him or her in a job interview. A Overview of the Moot Court Brief petitioner seeks to persuade the appellate court that the lower court's ruling or holding is erroneous and should be reversed. Conversely, respondent seeks to convince the appeiiate court that the lower cour’s ruling or holding was correct and should be affirmed. A good brief is clear, accurate, concise and persuasive. The brief should begin by telling the court the client's precise goals or objectives. Then, the brief should persuade tie court that your client's /egal position is Aol Pda) PEC c ences etoCT elem Crees aa cl)