Skills of Mooting - Lecture at Sinhgad Law College, Pune

1. Lecture at Sinhgad Law College Pune Skills of Mooting Dr. T.S.N.Sastry Prof & Head Dept of Law University of Pune 13.08.2011 tsnsastry@gmail.com

2. What is a moot • A moot is a legal debate in a courtroom setting usually, but not exclusively involving a case taken on appeal. In a moot two teams of counsel attempt to persuade a judge of the strength of their case by reference to legal authority. In a student moot the teams consist of two pairs of students representing appellant and respondent debating in a moot problem. • A moot problem is a pre-drafted factual situation in which a point or points of law are in dispute. The task of each team is to support the side of the argument with which it has been presented. This is done with reference to legal authority such as case law, statutes, institutional writings and legal principles. • The role of the judge of the moot is to weigh up the arguments presented to him or her and to question counsel where this is necessary to allow the judge to understand or accept the points being made • Counsel speak in the following order: • Junior Counsel for the Appellant ; Junior Counsel for the Respondent • Senior Counsel for the Appellant ; Senior Counsel for the Respondent • At the end of the moot the judge makes two decisions: • Firstly, he gives his judgment on the law. • Secondly, he makes his decision as to the winning team in terms of mooting skills.

3. Mooting - The Skills Involved • Mooting is a combination of public speaking and debating, yet differs from both. • The best mooters are those who do three things well: • Firstly, they are prepared thoroughly, examining the problem closely and from all possible angles. • Secondly, they produce solid, comprehensive arguments as a result of their research. • Thirdly, they select their best two or three arguments, and present these clearly and calmly to the judge.

4. Choosing Authorities • The number of authorities is usually limited to about seven or ten cases; but do not imagine that you must cite as many as are permitted • It is permissible to use a casebook • As a general rule, modern day textbooks should not be cited to the court unless they contain an especially persuasive argument of law and you cite them at your own peril! If you feel compelled to cite textbooks, it is a good idea to stick to hardback tomes • Beware of citing items that are way off the beaten track

5. Choosing Authorities • Distinguishing a case can be done in one of three main ways: • 1. By arguing that the case has been over-ruled by one of the cases cited by you; or • 2. By arguing that the case can be distinguished from the case at issue on the facts or the law decided; or • 3. By arguing that the case was wrongly decided in that it conflicted with settled law or legal principle. In this third case, it will be necessary to argue that as a consequence the court ought to over-rule the earlier case (provided your court has that power).

6. Report Writing • Writing is one of the important Skills in the Moot • Present the Facts in Brief • Find out the questions involved • Frame the issues with the citations of materials • Draft the Arguments • Structure the Plea • Style and language are important • Don’t write complex and compound sentences • Care full about the research • Presentation of it in a good book form • Citations in the Annex

7. At the Moot • It Deals with the Manners and etiquette to be adopted in the Court Room • Never make the judge to wait for your arguments. • Be polite and be pleasing manner in the court. • Eve in if a judge irritates don’t loose patience • Address the court with utmost respect address the bench your Lordship

8. How to Cite Authority • As in addressing the court, there is an art to presenting authority to the court. When citing a case to the court you should not use written abbreviations. Instead quote the full form. For example, instead of saying "Donoghue vee Stevenson 1932 S.C. (H.L.) 31... • Do not start to quote until you can see that the judge has found the exact place in the report. Always ensure that you and the court are using the same set of law reports. • When citing a case, it is often advisable to offer to acquaint the judge with the facts of the case. This offer is often not taken up, but it is still polite to do so.

9. Speaking Skills • One of the most important skills of the mooter is straightforward public speaking. You should rememer that no matter how familiar you are with your arguments, the judge is hearing them for the first time. You should always pay special attention to ensuring everything you say is clear and well-structured. • Getting someone to read over your submissions before you present them is a good idea • Your delivery should be clear and proceed at a reasonable pace • While it is obviously important to make yourself heard and to appear calm and confident, do not be too forceful in your delivery. The judge may respond to aggression with aggression, and this is clearly not in your favour • Timing is a very important factor. First and foremost you must speak slowly enough to be understood, so you should tailor the length of your submissions to the point at which you are speaking at a reasonable pace and are still comfortably within your time limit

10. Answering Questions • Answering questions well can make the difference between winning and losing a moot. The best advice is simply to prepare well. The more you prepare, the better a grasp of the law and the facts you will have, making your answering of questions easier. It is a good idea to try and spot the weaker parts of your argument in advance as this is where most tricky questions arise. Watch out for what seem to be trick questions. • If the judge asks a question to which you do not immediately know the answer DO NOT PANIC. Don't be afraid to stop for a few seconds to think about it. If necessary, ask permission of the judge to consult with your partner • Another tactic is for junior counsel to leave a question to be dealt with by his or her senior. If this is done then senior counsel must make a point of doing so.

11. Notes for Guidance of the Moot Clerk • The clerk's job is to be chief administrator at the moot. Although a moot will normally be presented to the "court" by a third person, in all other respects the clerk takes responsibility. • The clerk has two main tasks. Firstly, he or she is responsible for the collection of authorities and their transfer to the moot venue. • The clerk will receive the two lists of authorities on the day before the contest. He or she should check which authorities are common to both lists, and whether the citations are also common

12. Learning Legal Rules • Understand the Law First: How law is made; where to find Law; Tools involved in law Making • Finding the Law: Literary Sources; Cases; Legislation; EU Law; International Law; Online Resources • Reading the Law: Legislation; Cases and Authorities View • Reading to Writing: How to Write Legal language manner • How to present Answer to questions • Law Fact and Language: • Judicial Precedent: State Decisis (Binding Precedent • Higher Courts • Interpretation of Statute • Legal Reasoning