WHAT IS A MOOT?
• A form of advocacy
• It is a simulated court proceeding (usually of an appeal,
arbitration, etc.)
• You make submissions to a judge or panel of judges based
on an issue of law
• The aim is to persuade the judge/s that you have the
stronger case by citing authorities such as legislation and
case law
• The judge/s may question you during on a variety of
things during your oral submissions
THE DIFFERENCE BETWEEN A
TRIAL & A MOOT
Trial
• Facts are in contention
• Parties disagree as to what has happened
• Court will determine what has actually happened
Moot
• The law is in contention
• Complex or unanticipated facts when law was made
• Inconsistent or erroneous application of the law by
previous judges
• Reaching a solution for a client through
interpretation of the law (often legally complex)
WHAT MAKES A GOOD MOOTER?
• Making light of a complex situation
• Getting to the heart of the Problem
• Making clear and persuasive submissions which the
judge/s can easily follow
• Bringing simplicity, rationality and elegance to a complex
problem
• Answering questions from the bench clearly and with
confidence
• Practicing good oral presentation skills and court etiquette
WHY MOOT?
• Improve your research, writing, and presentation skills
• It is the closest experience to real legal work that you can
gain in law school
• It is a necessary skill for aspiring barristers
• Practice in a low-pressure environment before entering
the work force
• Showcase your capabilities as a student
– CV building
– Great if you would like to be a candidate for an international moot
• Improve your self-confidence
• It is a fun and practical application of the law
outside the classroom
SPEAKING ORDER DURING A MOOT
After the judge has taken appearances, the speaking order is
as follows:
• Senior Appellant
• Senior Respondent
• Junior Appellant
• Junior Respondent
• This can change depending on the moot
• Note that being assigned ‘Senior’ or ‘Junior’ is not a
reflection on skill, only which ground you will be
mooting on
SEATING
Moots hinge on good research and a solid argument.
To achieve this, you need to:
• Know your facts
• Know your causes of action
• Know your cases and legislation
The only way to do all these is to PREPARE.
Preparation gives you:
• Confidence in your argument;
• Allows you to present your argument properly; and
• Allows you to answer questions from the bench in an
informed and well-structured manner.
KNOW YOUR FACTS
• As a starting point, it is important to know the facts of
your case
• You will need to know your scenario inside out and
back to front
• Making a timeline of the facts is a good way to begin
memorising the scenario and it will also give you a
clearer picture of what you are dealing with
• Once you know your scenario – let the research begin!
KNOW YOUR CAUSES OF ACTION
• A good place to begin your legal research is to read the
grounds for appeal
• A moot problem is usually, but not always, a simulated
appeal where a trial judge has decided on the case at
first instance
• For example, if a trial judge ruled that a defendant had
not acted negligently because the likelihood of injury
was not reasonably foreseeable, you immediately know
that the crux of the matter is ‘reasonable foreseeability´
• Often it will not be quite that easy, so you will need to
figure out which area of law you will be dealing with
LEGAL TERMS AND PRINCIPLES
• Legal dictionaries are a great place to start looking for
terms you do not understand
• Textbooks are a great place to start looking for general
definitions and application of legal principles
• Use legal databases to further your understanding of
the key legal principles that will be relevant in your
case
• These will then lead you to the all important primary
sources - cases and legislation
LEGISLATION AND CASES
It is very important to understand the relevant legislative
framework and cases.
Examples of relevant legislation:
• Negligence - Civil Liability Act
• Consumer law or equity - Australian Competition and
Consumer Act
• Corporations law - Corporations Act
Some databases you can use include:
• For federal issues (consumer law or corporations law) use
Comlaw
• For state issues (criminal law or torts law) use the State
Law Publisher
• For specific legislation, you can use Austlii
• Lexis Nexis and Westlaw for cases
CASE LAW
Good use of case law is where moots are won or lost.
• Cases help you build persuasive arguments
• Cases demonstrate how judges have applied the legal
principles to the other cases
• The High Court of Australia is the highest authority, so use
their decisions wherever possible
• Cases often have dissenting judges – know why the judge
dissented; you can use dissents in your arguments
• Read these decisions and know the reasoning of the
judges inside and out
CASE LAW CONT…
Get comfortable using legal search engines to find cases:
• CaseBase (LexisNexis)
• First Point (Legal Online)
• Westlaw Au
• Austlii (can be useful for recent decisions, but use the
others where you can)
Make sure you use the most authoritative versions of
cases:
▪ Eg. Commonwealth Law Reports (CLR) for High Court
cases
CASE LAW CONT…
• You should look for authorities that are against you as
well as authorities that support you
• These authorities should be examined as a whole in
order to extract a comprehensive legal principle and,
most importantly, to find exceptions to them and
grounds for distinguishing them
• This way you can respond to your opponent’s case and
put forward an argument to support your argument
over theirs
CASE LAW CONT…
A previous decision in a case is only authority for the principle
of law that is the basis of the decision in that case, therefore
when citing a case it is important to know:
• The facts of that case
• The actual decision given in relation to those facts
• The reasons which have been given for deciding in that
particular way
The bench may ask you to explain why the case is an authority
for the submission you are making – so be prepared!
It is a good idea to prepare case summaries for any
cases you cite.
APPLYING YOUR RESEARCH
• Once you have done all your research, you should reexamine the facts of your scenario in light of these legal
principles
• This research will form the foundation on which you
will structure your written submissions, oral
submissions to the bench and the way you will develop
your argument
• Once you have completed the research phase of a moot,
the hard work is done and you will find that the
submissions will flow relatively easily
WRITTEN SUBMISSIONS
• Written submissions refer to the document outlining
key elements of your argument
• They structure the argument and provide authorities
for all submissions made
• They are the skeletal outline of the oral argument
• Written submissions are generally written in a set
manner
• Once you have learned how to write them, future
submissions will usually be written in a similar
manner
FIRST PAGE HEADER
REQUEST FOR RELIEF/ORDER
The Request for Relief/Order is the theme of your
argument.
• It describes what you will be arguing to the court
• It shows what you want the outcome to be
• It is usually one or two sentences and goes directly
under the header.
An example:
SUBMISSIONS
Under your request for relief/order, you outline the
submissions that support this request.
Your submissions should:
• Break your argument down simply and succinctly
• Be logical steps to support your proposition
• Be clear and easy for the judge to read and follow
• Be numbered and flagged clearly
Usually three submissions will suffice
• This can vary depending on the question
• The number of submissions will not necessarily
reflect the strength/weakness of the argument
CONCLUSIONS
• This should be a simple statement of the outcome you
would like the court to reach
• As part of the conclusion, include the date and sign off
• The sign-off should include name, counsel position and
party
AUTHORITIES PAGE
• This will be the separate, final page of your written
submissions
• Use the same header as on first page of submissions
• List your authorities in alphabetical order
• Legislation
• Cases
• ALWAYS number your authorities
• ALWAYS cite authorised versions of cases (e.g. CLR)
AUTHORITIES PAGE EXAMPLE
COURTROOM ETIQUETTE
1. Attire & Appearance
2. General Courtroom
Etiquette
3. Language
4. Courtroom Procedure
5. Taking Appearances
ATTIRE & APPEARANCE
• Look the part – first
impressions count!
• Dress conservatively – keep to
dark colours (black, dark blues
and greys)
• Hair should be neat – tie back
long hair, keep hair out of your
face
• Keep jewellery minimal
• Suit jackets or blazers should
always be worn in court
ATTIRE & APPEARANCE CONT…
Ladies
• Avoid low cut blouses
• Shoes should be enclosed and heels should not be too
high
• Skirts and dresses should fall to the knee
Men
• Suits are necessary
• Ties should be neat and firm to the collar
• Belts should be worn (and preferably match your
shoes)
GENERAL COURTROOM ETIQUETTE
• Stand when speaking in court
• Sit when your opponent is speaking (only one person
should be standing at any time)
• Never approach the bench
• Maintain a poker face (e.g. if your opponent makes an
outrageous argument, do not make facial expressions)
• Put yourself in the Judge’s position, how will s/he perceive
you?
• Modulate your voice to how far the bench is from you
• Excessively loud speakers can come off aggressive and
really quiet speakers can come off timid
GENERAL COURTROOM ETIQUETTE
CONT…
• Avoid copious amounts of paper at the lectern
• Organise a file for your notes and familiarize yourself with
their order
• When speaking, hold onto the lectern and keep hand
gestures to a minimum
• Avoid theatrics – you are in a formal setting, behave
accordingly
• No speaking with co-counsel – discretely pass written
notes
• Have your hands on your lap or on the table when you’re
not addressing the court
• Never speak over a judge or an opponent
LANGUAGE
Refer to the judges as ‘Your Honour’
In referring to your co-counsel, say ‘my learned colleague’
In referring to your opponents, say ‘my learned friend’
Address your counsel or opponent through the judge - not
directly
– E.g. ‘Your Honour, my learned friend raised the
argument that…’
• When citing cases, refer to the Judge as Justice [name]
• In civil cases, the case names are said ‘Smith and Smith’
• In criminal cases, the case names are said ‘The State of
Western Australia against Smith’ or ‘The Crown against
Smith’
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COURTROOM PROCEDURE
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The court orderly will say, ‘All rise!’
The judge will enter
All will stand
All bow to the judge after s/he acknowledges us
All then sit after the judge is seated
The judge will then ask for appearances from counsel
The moot will proceed
TAKING APPEARANCES
• Appearances are simply introductions
• Judge will say something such as, ‘I will now take
appearances’
• The Senior Appellant will say “May it please the court, my
name is ___ and I appear with my learned Junior ___ for the
appellant, ___”
• The Senior Respondent gives their appearances next in the
same fashion
• Last names must be used
• The Juniors do not need to give appearances as they have
already been introduced by their Seniors
ORAL PRESENTATION
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Basic Speaking Tips
Preparation
Signposting
Opening
Case Theories
Body of Your Argument
Concluding
Special Responsibilities of the Senior Appellant
BASIC SPEAKING TIPS
• Speak slowly
• Alter your volume to suit the room
– too loud = aggressive
– too quiet = unsure of yourself
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Use simple, concise language
Make eye contact – don’t read
Know your arguments
Keep movements and gestures minimal
Look at the entire bench
Do not speak with your co-council - pass notes instead
Judges names - “Justice Simmons” not “Simmons J”
Personal opinions should never be given
– Do use: I/we submit; I/we say
– Don’t use: I/we believe; I/we think
PREPARATION
• Unmarked copies of authorities for the judge/s
– This is dependant on the competition rules
– Sometimes you may use tabs
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Copies of all authorities for yourself
Have summaries of all authorities and full citations
A copy of your written submissions for yourself
Notes for oral presentation (not a written out speech)
SIGNPOSTING
• Also know as ‘road mapping’
• You should provide an outline of your presentation during
your opening so that the judges have a clear picture of
where your arguments are going
• You want to make your case as easy to understand for the
judges as possible
• Signposting helps keep the judges on track and prevents
them from asking you about something which you will
address later on
• Signpost throughout your oral submissions
– For example: I will now turn to my second submission that… We
support this submission by way of three propositions: first…;
second…; and third…
OPENING
• Begin your submissions with a statement that is catchy,
concise and reflects the central idea of your argument
(case theory)
• Maintain eye contact with the judges, especially during
your opening
• Examples:
“Your Honour, this case involves the protection of vulnerable
people from harsh contractual terms. The law should afford
protection to those who may be taken advantage of.” (Applicant)
“Your Honour, it is a fundamental rule of contract law that people
should be held to their contractual obligations. A person cannot enjoy
the benefits if a contract and then attempt to avoid the
responsibilities.” (Respondent)
CASE THEORIES
• A brief and catchy statement reflecting the central idea of
your submissions which you will state in your opening
• Use key terms from your case theory throughout your oral
submissions so that it stays prominent in the minds of the
judges
• Usually, one side will have the moral high ground while the
other has the legal high ground and your case theory will
be based around that
• Consider the policy behind the law you are arguing
• Sell the strengths of your argument
BODY OF YOUR ARGUMENT
• Follow the skeleton of your written submissions, but you
must expand upon them
• Every submission needs to be supported with law
(authorities) and applied to the facts you’re given
• Use the IRAC model as a guide
– State the Issue
– State the relevant Rule (law)
– Apply this law to the facts
– Draw a Conclusion (your argument)
• Always try and present submissions in the most clear
and concise manner
• You can incorporate rebuttal into your oral submissions
• Some moots will allow for rebuttal time also
CLOSING
• Sum up your submissions
• Highlight the essential issues and how they should be
resolved
• Highlight the weaknesses in opposing counsel’s case
• Attempt to tie everything together and return to the big
picture
• Example of how to finish:
Your Honour, it is for those reasons that we respectfully
submit that you find in favour of the Appellant. May it
please the court.
• If you need more time, you must request it from the bench
• Do not request more time once it has already expired
• Example: Your Honour, I see that my time is about
to expire, may I have an extra thirty seconds to
summarise my case?
THE SPECIAL RESPONSIBILITIES OF
THE SENIOR APPELLANT
Offering a summary of the facts to the bench
• No longer than one minute
• Account for it in timing your oral submissions
Dispensing of formal citations
• The first use of an authority must be said as a full citation
– Looks like: Dorman v Rodgers (1982) 148 CLR 365
– Spoken: In Dorman and Rodgers, 1982, in volume 148 of the
Commonwealth Law Reports, at page 365…
• After this, you can request to dispense of formal citations
– ‘Your Honour, may I dispense with formal citations?”
• Thereafter, only the case name is required (page/para no.
and judge’s name are required if you quote)
– “In Jones and Smith, Justice Thomas said at page 34…”
QUESTIONS FROM THE BENCH
• It is standard procedure for the judge to interject and ask
questions during your oral presentation
• It is often to seek clarity or test your understanding of the
law and facts
• Don’t be scared – it’s good opportunity to demonstrate
your knowledge
• This is when the best mooters become apparent
• Persuasive answers to questions make for a persuasive
case
READING THE BENCH
Reading the bench helps you predict the types of questions you
may be asked and decide how you should manage your time
Passive Judges
• Sit back and listens without getting too involved
• Will only ask necessary questions which are often well
thought out
Active Judges
• Ask many different types of questions
• Often interrupt your submissions with questions requiring a
yes/no answer, seek clarification of points you make, and
may ask questions which are not directly on point
• Will judge your ability to think on your feet, focus
on
what is at issue and engage with the bench
TIPS
• Listen to the question carefully
• Don’t interrupt the judge at any point (even if you know
where the question is going or you know the answer)
• Take time to compose yourself
• Be polite, even if you think the question is a simple or
unnecessary one
• Respond to the whole bench
• Use direct and simple answers - answer ‘yes’ or ‘no’ if
possible and then explain your answer
• Don’t be afraid to disagree, but you must be polite and able
to justify your position
– E.g. “No, Your Honour. We respectfully submit that…”
• Don’t be argumentative or dismissive
• Be flexible and prepared to jump around arguments
RESPONSES TO QUESTIONS
• You must understand the question. If you are unsure, ask:
– “Your Honour, could you please clarify that/repeat the question?”
• Questions can be answered with “Yes/No, Your Honour” and
elaborated upon if needed
• The judge may only ask for a page number or Judge’s name
• Can you answer with facts?
– E.g. “I will draw your attention to 3 main facts…”
• Can you answer with law?
– E.g.” I refer your honour to the case of X v Y where…”
• Does the question require a longer explanation? Does the
question require you to state the law, apply it to the facts and
conclude?
• If you don’t know the answer, as a last resort you can say:
– “Your Honour, I’m unable to assist the Court any further
with this matter”
• This is better than bluffing or failing to answer at all
MULTIPLE QUESTIONS
• A key skill to develop is to listen carefully to each question,
reformulate the questions in a clearly organised and
logical plan of response, inform the judges how you intend
to answer (implicitly seeking their approval), and then
proceed with your response.
• For example, if all three judges have asked successive
and/or overlapping questions, you might say:
– “Your Honours, I will respond first to the question from
the Chief Justice with respect to agency, the answer to
which is directly related to the comments by Your
Honours as to whether Mr. X was acting on behalf of the
company…”