How to Moot I - preparation

Don't panic!

Okay. So you've got your first mooting problem.

Aaaagh! Where to begin?
Well, first, lets make a few assumptions.

1. you're a law student

2. you know the rules about precedents

3. you know how to find law cases in the library,

and how citations work

If any of the above aren't true, then you will need to

read a book on the basics of English law before you
start mooting, such as the excellent Learning Legal
Rules or Glanville Williams' Learning the Law. How to
use a Law Library by Jean Dane and Philip A Thomas
is also useful to refer to.

It is usually best to work initially in a pair on the

moot problem until you can identify the issues
and split up the work fairly. The first thing to do is to
look carefully at the problem, try to summarise it,
and work out what area, or areas, of law the problem
deals with. e.g. crime / tort / property / contract /
employment law.

Return to top

Getting started...

When this is done, there are usually two places to

start:

1. You can look the area of law up in a law

textbook, read the chapter or section on it,
and find out the names of some relevant
cases, as well as getting a picture of what the
case is about and what the real issues to be
argued are. There are a number of general
textbooks on legal subject areas which are
useful to get you started. Lawyers will
probably have come across them during their
studies. Examples include:

o Tort : Textbook on Torts, Michael A

Jones
 o Contract : Contract: cases and
materials, H G Beale, W D Bishop, M P
Furmston

o Criminal : Criminal Law, Smith & Hogan

o Property : Elements of Land Law, Kevin

J Gray, Susan F Gray

It is vital that you use the most up to date

version of any textbook. Information from a
textbook more than five years out of date
should be double checked to see whether any
more recent cases have affected the legal
position.

2. If the moot problem mentions the names of

cases - and most do - you can look these up
directly, and reading through them may give
you a clearer idea of the likely problems to be
encountered in the moot. Some judges realise
the importance of their judgments to law
students, and will go out of their way to
clearly summarise the legal position in the
relevant area of law. Lord Denning judgments
can often be a blessing (unless he is talking
about proprietary estoppel!)

The judgment in a case will refer to other

cases, which may also be worth looking up.

Where the case is in the Court of Appeal or

below, you should check that there has not
been a subsequent appeal and different
decision. Some well kept sets of law reports
will tell you this via stickers in the margin. CD
rom searches where available (e.g. the All
England Case Reports on CD rom published by
Butterworths) are a useful method of checking
whether a case contains the most up to date
statement of the law - type in the case name
as a search string and this should produce a
list of subsequent judgments which have
mentioned the case concerned.

On-line search tools such as Lawtel can be

useful for checking for up to date cases, if
your institution subscribes to the service.
There are also free sources of recent legal
information on the internet - some are
listed here.
 Return to top

Working out your main argument

Okay, after a quick look at the cases or textbook, you

should be beginning to get an idea of what the case is
about. The next step is to work out exactly what you
are trying to argue, so that you can begin to identify
and find authority for points in your favour.
Unfortunately, this is not easy, and is a point where
many first time mooters can become very confused.

You should have been informed at the time of

receiving the moot problem whether you are the
appellants or respondents, and whether your case is
in the Supreme Court or the Court of Appeal (or
occasionally, a different court or tribunal). If you are
not sure, ask.

Appellants, Supreme Court case

You are appealing against the decision made in

the Court of Appeal. The Court of Appeal
judgment is often stated in the problem, and
you must argue against the reasons given in
that judgment. You are usually helped by a
statement of the grounds of appeal. These are
the points which you must argue.

What often wins the case is sound reasoning,

and disguised policy arguments. The Supreme
Court is in theory bound by its own previous
decisions, but can depart from them if the
earlier cases are carefully distinguished on
their facts.

Appellants, Court of Appeal case

You are appealing against the decision of the

judge at first instance, i.e. the original court
where the case is tried. This is generally a
Crown Court or a High Court judge, depending
on the type of case. Your must argue against
the reasoning of the first instance judge, and
support the grounds of appeal.

A Court of Appeal case is often won by careful

use of Supreme Court authorities, which are
binding on the Court of Appeal, if they can be
shown to be appropriate. The Court of Appeal
will also generally follow its own previous
decisions.
 Respondents, Supreme Court case

You must respond to the grounds of appeal

put forward by the appellants, as your aim is
to have the Court of Appeal judgment
reaffirmed. It is usually necessary to argue the
opposite of that stated in the grounds of
appeal.

If any Court of Appeal judgment is given in the

moot problem, you must find authority to
support the arguments made by the Court of
Appeal judge.

Respondents, Court of Appeal case

You must respond to the grounds of appeal

put forward by the appellants, as your aim is
to have the decision of the original court
reaffirmed. You must argue the opposite of
that stated in the grounds of appeal.

Any decisions in the Supreme Court which

support the first instance decision are likely to
be binding on the Court of Appeal, and
respondents should carefully argue why such
authorities should be applied in this case.

NOTE:
Appellants/Respondents/Claimants/Defendants

Some confusion will inevitably arise over terminology

at this point. The claimants (referred to in older cases
as the plaintiffs) are the party which initiated the
original action, but are not necessarily the appellants.
Here is an example.

1. Smith sues Jones over negligent work.

o Smith = claimant

o Jones = defendant

2. Smith wins. Jones appeals against the decision

to the Court of Appeal

o Smith = claimant and respondent

o Jones = defendant and appellant

3. Jones wins. Smith appeals to the Supreme

 Court.

o Smith = claimant and appellant

o Jones = defendant and respondent

This shows why it is essential to tell the judge

whether the appellant is the claimant or defendant,
but more on that later.

It is often useful to write down exactly what you are

arguing.

e.g. If a ground of appeal is

The weapon did not constitute an 'offensive weapon'
under s.1(4) of the Prevention of Crime Act 1953.
and you are the respondents, your argument will be
The weapon did constitute an 'offensive weapon'
under s.1(4) of the Act.

Return to top

Splitting the work

Once you have identified the arguments to be made,

it is possible to split the work between the two
advocates, and work alone. It is, however, very
beneficial to work together, and have a working
knowledge of each others' arguments for when it
comes to the moot.

Usually, a problem will have two grounds of appeal. If

there are more, you will have to decide how to split
them. At this point you will have to decide who will be
lead, and who will be the junior advocate for the
moot. The junior generally has less speaking time,
but, in the case of the respondents, gets the final
word.

It is sensible for the junior to take the ground which

appears to be the least work, or to take only one out
of three grounds. If, after sharing the load, it appears
that the problem has been unfairly split, it is
important to rectify this, or you may find that later,
insufficient speech time will be devoted to a particular
point in the moot.

Return to top

Supporting an Argument

There are a number of ways to support a legal

argument:

1. Authority

2. Reason and logic

3. Policy arguments

By far the most important of these is the first.

Indeed, reason and logic as well as policy arguments
should be used so subtly that the judge is not aware
of their existence. Any legal argument should be
firmly founded in authority.

The novice should concentrate solely on use of

authority. Authorities can be (in approximate order of
importance)

1. Decisions of the European Court of Justice

2. Supreme Court Cases

3. Court of Appeal Cases

4. Supreme Court/Appeal judgments in other

jurisdictions based on English law

5. Other English cases

6. Quotations from learned articles and textbooks

(see notes below)

7. American/Canadian Supreme Court judgments

(see notes below)

8. Parliamentary debates / debates of standing

committees (only in certain circumstances -
see notes below)

(NB Scottish law is often the same as English law as

regards the points which are to be argued in moots,
but it is important to check that any Scottish
authorities (often annotated as SC, or Session Cases)
are appropriate, and vice versa.)

Care needs to be selected in the choice of authority,

as the effect will depend on the court in which the
case is heard and also the judge's own preference.

Mooters should always refer to case law carefully -

there are embarrassing mistakes to be made!
Some judges will reject all non-English cases, or even
everything except the first three. American, Canadian
and Australian judgments are particularly prone to be
thrown out by the judge. e.g. Cases from the
Dominion Law Reports (DLR) and the Commonwealth
Law Reports (CLR). 'Does that case have any bearing
on this court?' The best rule on this is to stick as
much as possible to the first three sources of
authority, but if a particularly good authority is found
elsewhere, then try it and play it by ear.

If one of the main English cases appears to be based

on an overseas authority then it is probably
acceptable to refer to it. It may be prudent to
introduce the case by saying 'although not binding on
this Court it may be of assistance to examine the
judgment in...'

A note must be made on the use of textbooks and

articles. Use textbooks rarely. A textbook may only be
used if it is a leading authority on the subject, as
defined by practising lawyers, not lecturers. Your
course textbooks (if you are a lawyer) will almost
certainly not be considered good authority.
Practitioner texts which could be considered can often
be identified because they usually have the author's
name as part of the title! Examples include:

Snell's Equity

Chitty on Contract

Emmet on Title

Megarry's Manual of the Law of Real Property

Clerk and Linsell on Torts

McGregor on Damages

The way around this is to find out which case the

textbook writer is using to support their own
arguments (there generally is a case) and quote from
that.

Parliamentary debates and the debates of standing

committees can only be used in very specific
circumstances where a statute or statutory
instrument is ambiguous, obscure or absurd.
See Pepper -v- Hart [1993] 3 WLR 1032, which is the
first case where the debates were allowed to be
considered.

Everything you put to the judge in a speech should be

supported by some sort of legal authority. The judge
is liable to ask, quite rightly, 'What is your authority
for that counsel?' You cannot make up arguments out
of thin air. The only possible exceptions to this are a
simple logical statement arising from the facts stated,
or a comment on policy.

Return to top

The facts of the case are not in dispute

No matter how little you dislike the fact that Johnny X

was found to be dishonest, if it states this in the facts
of the case, and it is not disputed in the points of
appeal, you cannot argue against it. The appellate
court does not have access to the evidence which was
in front of the original court, and so cannot dispute
the findings it made on the basis of that evidence.

The moot argument is on the law, not on the validity

of any factual evidence.

Return to top

What to Call Members of the Court

A simple problem, but one which a surprisingly large

number of mooters get wrong! A single male judge,
in both the Supreme Court and Court of Appeal is to
be referred to as 'My Lord' where you would usually
use a name, and 'Your Lordship' where you would
usually say 'you'. A male or mixed panel of judges
are 'My Lords' or 'Your Lordships'. A single female
judge can be referred to as 'My Lady' or 'Your
Ladyship', although some female judges may prefer
to be Lords - it may be wise to check the judge's
preference before the moot starts. A female panel
may also be Ladyships or Lordships. The current
absence of an all female panel of judges in the Court
of Appeal or Supreme Court means we can only
speculate on how they should be referred to!

All references in this 'How to Moot' guide to My Lord,

or Your Lordship, should therefore be taken to
include My Lady, or Your Ladyship where appropriate.

'Your honour' is not suitable for addressing the judge

in an appellate court, no matter how many times you
hear it on LA Law!
The two opposing mooters should never be called 'the
opposition' and certainly not 'the enemy' or 'them
over there'. (You would be surprised what terms are
used!) The correct manner of referring to other
counsel is as 'My Learned Friend(s)' or 'My Learned
Friends Opposite'. Also appropriate is 'Lead/junior
counsel for the appellants/respondents', or 'Mr Smith
of counsel for the appellants'. (In practice solicitor-
advocates are only 'My Friend(s)', and whether or not
they are 'learned' is a matter of much debate at the
Bar!)

Examples:
'I am grateful to your Lordship'
'My Learned Friends opposite have cited a number of
interesting cases'

Return to top

Court Etiquette

The language of a courtroom is different from that

used in everyday speech, and you should try and
formulate phrases as you might expect a barrister or
judge to say them. Colloquial phrases, such
as 'Okay' and 'All right' are not acceptable. If a judge
corrects your mistaken interpretation of a case, the
correct response would be something like 'I am
grateful for your Lordship's assistance' rather
than 'OK. Ta.' Speaking slowly often allows you to
think of what might be appropriate to say, rather than
how you might ordinarily respond.

Thanking people is always a good idea, even if you

would rather throttle them! It is also professional to
ask the judges permission at various stages of the
speech: 'With your Lordship's permission I would like
now to...'

Another point to remember is that your role is to

assist the judges in their decision making. What you
say and do is for the judges' benefit, so keep a
careful watch on them to see if they are following
your argument. Allow them time to find a citation,
unless they indicate you should go on. Interact with
the judge. Talk to them, not at them.

As an advocate, you are giving arguments based on

legal authorities to aid the judge. You are at no stage
giving your own opinion, merely restating the opinion
of others. The opinion of the barrister is irrelevant for
the court to make its decision. As such, you should
never tell the judge what
you think, suppose or suggest. You must
merely submit humbly that the judge should adopt
your interpretation of the authorities given.

Therefore the phrase 'My Lord/Lady, I submit

that' should occur fairly frequently in a good moot
speech.

The speech should also give the full citation of a case

as soon as it is mentioned, and the advocate should
always ask the judge if he/she would like a summary
of the facts of the case.

e.g. 'A further authority which supports this is the

case of Smith and Jones which can be found in the
second volume of the 1942 Weekly Law Reports at
page 132. Would your Lordship like a summary of the
facts of the case?'

Return to top

Putting Together the Speech

The starting point of your argument should be the

points of appeal as stated. The appellants must prove
those points of appeal to be correct using legal
authority, and the respondents must respond to the
appellants' arguments. Select around four cases per
point (or as many as are necessary / permitted by
the mooting rules) and then base your argument
around these.

The Lead Appellant

It is usually the job of the lead counsel for the

appellants to introduce the advocates to the
court, and to summarise the case. Make sure
you prepare a summary - don't just read from
the moot problem.

Introducing the advocates could go as follows:

'My Lord, I am John Smith, and this is Tom
Hughes. We are counsel for the appellant, Mr
X / X plc, who is the claimant in this case. My
learned friends opposite Mr Jones, and Mr
Baldwin, appear for the respondents Mr Y / Y
plc / the Crown.'

(Always refer to R / Regis / Regina as 'The

Crown'. The case name R v. Smith should be
read in a moot as 'The Crown and Smith'.)

'Would your Lordship like a brief summary of

 the facts of this case?'

(The judge will almost invariably reply 'yes'.)

'In this case, X plc...(give a brief summary of

the facts stated, including details of the
decision at first instance, and the grounds of
appeal.)'

The lead appellant will then generally state

which ground he/she will be dealing with, and
commences the argument.

The speech can then take a number of

different forms, and it is important that
advocates are encouraged to develop their
own style. It is often useful to take the judge
through the relevant law first, before
proceeding to the main supporting case.

Do not mention any arguments against the

respondents cases - this can be done in the
five minutes reply time later.

The Junior Appellant

The junior counsel should generally have

his/her own ground of appeal to deal with, and
should not attempt to embellish arguments
made by the lead counsel. No introduction is
needed, save possibly:

'My Lord, I am John Smith, junior counsel for

the appellants in this matter. I shall be dealing
with ground two of this appeal, which states
that...'

The argument can then progress in a similar

way to lead counsel's arguments.

The Lead Respondent

The role of the respondent is a slightly

different one. Although the respondents can,
and usually will, cite their own cases, their
main role is to respond to the arguments put
forward by the appellants. The respondents'
speeches should therefore be fluid, and
adapted to answer the points made during the
appellants' speeches.

The Junior Respondent

 Junior counsel will follow on from the lead, but
will usually deal with a different point of
appeal. The junior respondent will be the last
person to speak for the respondents and the
speech may therefore end with a brief
summary of junior and lead counsel
submissions, although some judges are very
unsympathetic to any repetition.

The Appellants 'Right to Reply'

In most moot competitions the lead appellant

is then given some extra time to respond to
the respondents' arguments. This time should
be used to rebut the respondents arguments,
and not merely to restate the case made
earlier.

Return to top

Discrediting a Legal Argument

There are a number of possible ways to do this

1. Distinguishing the case - this means that you

argue that the case cited is in some way
dissimilar to the current one so that the
judgment made in the case is irrelevant. This
can be done either by showing material (i.e.
relevant) differences in the facts of the two
cases, or by showing that the case cited was
based on a different set of laws or regulations.

2. Errors in citation - you may be lucky enough

to spot an error in the citation. Possibilities
include:

o citing an Court of Appeal judgment

where the case went to the Supreme
Court who found differently - the
Supreme Court decision effectively
overrules the Court of Appeal decision

o citing a dissenting judgment - this is

the judgment of a judge who was in
the minority, and has no legal
authority. Mooters should take care to
avoid this embarrassing mistake -
check that the conclusion of the judge
is the same as the final verdict -
usually printed at the end of the case
report
 o quoting from the headnote or
arguments of counsel - the 'headnote'
is the section providing a summary at
the start of a case report. Some reports
also give extensive coverage to the
submissions of counsel. Whilst these
may be of assistance in preparing the
moot, they should never be used in a
moot speech as they carry no legal
authority

3. Finding a later/more superior case which

disagrees. This is concerned with the rules of
precedent. A later judgment, or one in a
higher court will supersede the earlier/lower
one.

4. Logical/legal flaw - careful reading of the case

or statute may suggest an error in a line of
argument, or that it does not flow logically
from other authorities cited.

Return to top

How to Moot II - technique and tips for the day of

the moot

info@mootingnet.org.uk