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QUOTALS Mooting Workshop. Peter Black and Susan Hedge Monday 23 April 2007. The basics . What is a moot?. A moot is a formal legal argument before a judge or judges about points of law raised in a hypothetical case. It is never about facts – they are assumed

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Quotals mooting workshop l.jpg

QUOTALS Mooting Workshop

Peter Black and Susan Hedge

Monday 23 April 2007

QUOTALS Mooting Workshop 2007


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The basics

QUOTALS Mooting Workshop 2007


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What is a moot?

  • A moot is a formal legal argument before a judge or judges about points of law raised in a hypothetical case. It is never about facts – they are assumed

  • Two teams – applicant/appellant’s team and respondent’s team

  • Mooting team of 2 students – a senior and junior counsel

QUOTALS Mooting Workshop 2007


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Some terminology

  • Appellant – team appealing the decision below

  • Respondent – team responding to the appeal

  • Counsel – students mooting on each side

  • “my learned friend” – mooter on the other side

  • “my learned colleague” – your senior/junior counsel

  • “your Honour/s” – the judge/s

QUOTALS Mooting Workshop 2007


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From getting the problem to the competition…

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1. Research

  • Research for a moot is undertaken in the same way you research for anything else.

  • Work out the facts

  • Decide on relevant law

    • for junior moot 4-5 cases per counsel is a good medium

    • remember you need to know the cases you rely on inside out so you don’t want too many

  • Apply the law to the facts

  • Come to a conclusion

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2. Argue, discuss, consider, synthesise and argue more!

  • Talk your arguments through with your partner

  • Run through possible options, orders for arguments and ideas

  • Have your partner/mother/best friend ask you questions about your argument

    • They don’t need to know anything about the law

    • If you can’t explain it to a lay person, you need to think of an easier way of saying it

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3. Written outline

  • The judges rely on this for an understanding of the case

  • It must be correct – in law, fact and in citations

  • It must be honest

  • It must be short – follow the rules

  • It must make an argument – it must not read like an assignment

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4. Practice moots

  • Practice your arguments again

  • Make sure your arguments fit within the time limit

  • Make sure you can explain:

    • Each of your points

    • Each case you intend to rely on

      in one minute!

  • Susan’s tip – run through your argument walking to the bus/train or driving to a friend’s house – don’t use any notes and work through it logically

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5. Being ready on the day

  • Dress in business attire

  • Be on time to the moot court

  • Check you have your notes + copies of outlines for you and the judges + copies of every case you intend to rely on

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6. The moot

  • Appearances

    • Judge will call on senior counsel from each side to give an appearance for their team + speaking times, appellant team first, then respondent

    • Example: My name is Peter Black and I appear with Susan Hedge for the Appellant. We will each speak for 10 minutes.

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6. The moot (cont)

  • Order of speaking

    • Appellant – Senior counsel

    • Appellant – Junior counsel

    • Respondent – Senior counsel

    • Respondent – Junior counsel

    • Rebuttal – counsel (either) from the Appellant (not in Quotals Junior Moot)

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6. The moot (cont)

  • Structure of a good argument

    • Outline of submissions

    • Body of submissions

      • Move logically through points you wish to make – use enumeration

      • Rely on relevant authorities

      • Balance a logical structure with responding to the judge’s questions

    • Summarise

      • Summarise submissions made and orders sought – ie that the appeal should be allowed

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6. The moot (cont)

  • So, you have all the law, but equally (or more) important is how you get it across…

  • Presence in a court room:

    • Stand behind the lectern.

    • Eye contact.

    • Use hands in a natural way.

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6. The moot (cont)

  • Speaking style:

    • Speak slowly and clearly.

    • Be conversational.

      • Engages the judges.

      • Is more persuasive and likeable.

    • Be responsive.

    • Signpost your argument.

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6. The moot (cont)

  • If possible, try not to…

    • … read your submissions word for word.

    • …get frustrated with the judges.

    • … confer with your partner while you’re speaking (as it looks indecisive).

    • … lecture the judges.

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6. The moot (cont)

  • Timing – must cover the important things in the time allowed:

    • Don’t try to say too much (practice!)

    • Be prepared (if necessary) to cut some arguments while speaking.

    • Be prepared (if necessary) to move on to a new argument.

    • Usually able to ask for a small extension, but only if you need it… try not to!

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6. The moot (cont)

  • Rebuttal

    • Not in the Quotals Junior Moot, but is in the Senior, and also in all major inter-University Competitions

    • Opportunity to counter the opposition’s argument.

    • Keep it short – a couple of minutes is usually adequate.

    • Target 2-3 arguments. Be as specific as possible, especially if opposing counsel has got the law or facts wrong.

    • Good rebuttal relates to important issues.

      • Eg. where it relates to an argument where the opposition did a good job of attacking your case, or where it relates to an argument the opposition spent a lot of time on that you did not consider.

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6. The moot (cont)

  • Answering questions – the win or lose section of mooting:

    • Purpose – for you to show how deep your knowledge is and that you can think on your feet

    • Listen to the judge

    • Make sure you understand the question

    • Re-state the question back to the judge if you are unsure

    • Feel free to take a second to think – better than rambling!

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6. The moot (cont)

  • Answering questions (cont):

    • Yes/No if possible

    • If more than one point, structure your answer

    • Answer the question you are asked, not one you want to be asked

    • Answer succinctly if you can

    • Back up your answer with an authority if it is law based

    • Give the judge ALL the information you think they want – and that means, listen, read body language, understand what type of judge they are

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6. The moot (cont)

  • Answering questions (cont) – things not to do…

    • Patronise the judge – “That’s an excellent question, Your Honour”

    • Lie

    • Make up facts or law

    • Not answer the question

    • Ramble

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6. The moot (cont)

  • Answering questions – if you don’t know the answer to a question…there are a couple of options (choose the appropriate one):

    • “That is unclear on the facts your Honour”

    • “I do not have any submissions on the point of fraud your Honour, however in R v Yellow the QCA held that fraud was irrelevant to a charge under section 144”

    • “I apologise your Honour, I am not familiar with that case” (if you think you should know it)

    • “I am not familiar with the facts of that case your Honour however it was overruled by the High Court in Good v Better”

    • “I am not sure your Honour” – if you really don’t know and you can’t extrapolate. After you have used this one, move straight onto your next submission

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6. The moot (cont)

  • Dealing with judges

    • Pretend you want to be friends with them – treat them how you would a new, older, cooler friend, so

      • Don’t speak over them EVER – so you need eye contact so you can see whether they are speaking

      • Respect, deference and more respect!

    • They are not wrong, they are simply misguided sometimes – it is your job to guide them back to the relevant issues and to the facts and authorities that means your client wins

    • Charm them, smile, send off good vibes!

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Demonstration

Counsel: Susan Hedge

Judge: Peter Black

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232(1) Any person who

Keeps for gain any place to which persons resort for the purpose of playing at any game of chance; or

Keeps any place which is kept or used for playing therein any game of chance, or any game of mixed chance or skill and in which… (i) a bank is kept… or (ii) the chances…are not alike favourable to all the players…

is said to keep a common gaming house.

Weathered v Fitzgibbon [1925] NZLR 331, 337 – “a game of pure chance means a game in which there is either no element of skill whatever or an element of skill so unsubstantial and unimportant and for all practical purposes the game is one of chance exclusively”

G allows house in Brisbane to be used for 500 tournament (card game) for uni students

Entry fee of $50, prize pool for winning team is half of the door takings

Other half of door takings go into G’s bank account

All money kept in “kitty tin” in kitchen of house while tournament is played

Tournament rules – 8 teams, round robin, then semi-final knockout for best 4 teams, final is best of 3

Assume found not guilty under either section at trial, Crown appeals (very complicated, but ignore ability of Crown to appeal for purposes of this demo)

R v G – charged with keeping a common gaming house under s232(1)(a) or 232(1)(b) of the Criminal Code 1899 (Qld)

QUOTALS Mooting Workshop 2007


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Exercises

Appearances

Presentation of argument

Questions

QUOTALS Mooting Workshop 2007


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Duck agreed with PMSA to pay $5000 p.a to use the Toowong pond

Duck’s whole family were buried near Toowong pond, having died in fatal dog attack

Duck had lost one leg in same attack and cannot walk far

Normal price charged by PMSA p.a is $400

PMSA chose to visit Duck on anniversary of Duck’s family’s death with flowers + contract to be signed

Duck is 3 years old (middling age for a duck) and wears a red hat

PMSA is a corporation, with registered office in Victoria

Directors of PMSA are dogs and foxes

Duck v Pond Maintenance Society of Australia – unconscionable conduct (appeal by Duck)

  • Unconscionable conduct has three elements:

  • A special disadvantage on behalf of one party – that is one which inhibits that party’s ability to make decisions in their own best interests

  • The other party knows or ought to know of that disadvantage

  • The other party takes unfair advantage of that disadvantage and the tranx is not fair, just and reasonable

  • Commercial Bank of Australia v Amadio (1983) 151 CLR 447 (High Court) (parents under disadvantage re speaking English, reliance on son, inability to understand – signed unlimited guarantee over all assets)

  • Louth v Diprose (1992) 175 CLR 621 (solicitor under special disadvantage for being obsessed/infatuated with women who then stole his house)

QUOTALS Mooting Workshop 2007


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Questions? pond

QUOTALS Mooting Workshop 2007


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