Moo otin ng M Man nual l by hjkuiw354


									   NIVERSIT OF SY EY
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SYDNE UN           W   CIETY
           RSITY LAW SOC

      otin M nual
    Moo ng Man l

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This manual was written by Justin Hogan-Doran and Justin Hewitt. It is the property
of the authors and the Sydney University Law Society. No reproduction without
acknowledgement and permission is allowed.

1. What is Mooting?

Mooting is a legal hearing modelled on an appeal from a trial. As such, all of the facts
have been agreed upon and there are no witnesses. What is at issue is the way in
which the law has been applied to the facts – much like a legal problem question –
and this is argued out before a bench of one or more judges.

Appearing before the bench are two teams of two counsels each – a junior and a
senior counsel on each team. The two senior counsels oppose each other on a set of
legal issues arising in the moot. So too for the junior counsels. Each counsel is given
20 minutes to make their submissions. During the making of the submissions, counsel
will routinely be asked a number of questions by the judge(s) relating to their
submissions. The senior counsel for the appellant will start, followed by the junior
counsel. Then the other side will make their submissions.

Winning the moot is not the same as winning the case. It is really a case of how you
play the game rather that whether you win or lose. Clarity of argument and
expression, imaginative construction of flawless legal argument and effective
presentation are the key to winning the moot.

2. Why should I Moot?

Mooting will teach and develop all the skills you will need to come to understand the
law and legal method. It is ideal preparation for the problem-question oriented exams
and tutorials that are the centrepiece of the assessment regime at Sydney Law School.
Mooting will develop your ability to read and take notes on cases in such a way that
you not only know what it means but its significance and quality as well. It will teach
you to think and analyse the law in the style of an advocate – looking for loose
threads, analysing legal logic and argumentation, presenting your conclusions in a
sensible and effective manner. As such, mooting is guaranteed to improve your marks
not only in the subject you are mooting but in every other subject you study in law as

Mooting however is not only some form of an applied legal research and writing
course. Like public speaking it will improve your oral communication skills whilst
teaching you oral legal methods.

Mooting is not just for the would-be barristers out there. Far from it. In fact, solicitors
regularly appear in the lower courts and shall, in future years, be appearing in superior
courts as well. Mooting is an essential skill even if you never intend to don a wig or
wear a suit.

3. Who will Judge the Moot?

The preliminary rounds of the competitions will be judged by students with mooting
experience themselves. That means these rounds are less intimidating than they
otherwise might be. The mooting competitions at Sydney University do not require or
expect participants to have any previous experience, and in these rounds newcomers
can feel at ease.

The benches judging the semi-finals and finals all consist of three professionals. The
semi-finals are judged by solicitors, barristers and academics. The benches for the
finals are all headed by a Supreme Court Judge, except for the Senior Competition’s
Bench which is headed by a High Court Judge.

4. How is a Moot Judged?

Apart from the judgment in law, which will favour one team ahead of another,
mooters are judged individually in three areas, each of which is worth 20 marks. It is a
moot mark, not an evaluation of who won in law.

   a) Legal Research and Content of Argument

This refers to the quality of the legal argument used. It includes the choice of
authorities to back up your argument, the use of those cases in your argument, the use
of policy arguments and the overall quality of the argument that has been put forward,
including its structure (method) and your ability to be brief and to the point.

   b) Presentation, including Court Etiquette

Like manner in debating, presentation of the moot is very important, and it is this that
will separate the wheat from the chaff. In mooting, there are a lot of rules regarding
court etiquette and how to make submissions. This is dealt with at a later stage in this

   c) Question Answering Skills

Perhaps the most difficult and challenging area of mooting, questions can come at you
at any time during the moot on absolutely anything relevant to the moot (whether you
know it or otherwise). Judges may ask leading questions and perhaps even throw you
a line when you are in trouble. It is amazing how many times, despite the best efforts
of the judge, counsel refuses to take a gift question (or a hint of the answer!) from the
judges and stubbornly stick to their guns while their argument goes the way of the

5. The Written Presentation of the Case: Researching and Writing Your

   a) Studying the Facts

The first part of preparation for a moot is not unlike preparing for a tutorial problem
question in any of the law subjects you have been studying. It is necessary for you to
identify the legal issues arising from the question that has been set, taking care to
ensure you identify which of the issues are your responsibility (depending upon which
of the appellant, or which part of an appellant’s case has been allocated to you).

   b) Researching the Law

Having identified the issues, it is necessary to determine what the legal position of
your client is in respect of those issues. Do they have grounds to appeal (if you are
acting for the appellant), or are there grounds on which any appeal on that issue
should be dismissed (if you are acting for the respondent – often the Crown)?

In a moot problem question, there will be issues on which there is little doubt as to the
applicable legal principle. For these issues it may be necessary to show why the law
should (not) be applied to the facts. See if you can come up with any policy
arguments as to why this should be so.

More importantly to your submission (and the amount of time and effort you allocate
in the moot to dealing with these issues should reflect this), many of the issues you
identify will be moot points – that is the law on those issues is uncertain, or its
application to the class of case at hand in the moot has not yet been determined.
Through a combination of legal argument and reasoning, drawing on all existing
authority (whether persuasive or binding) and by arguing by analogy, you must seek
to persuade the Court in your point of view. The adversarial system we have in the
common law system, like competition in the market place, is aimed at achieving the
highest quality argument/advice for Courts to draw upon in making their decisions.

You must write out a summary of the legal arguments you will be making in respect
of the legal issues. You must take care to identify what possible weaknesses exist in
your position as well as any possible counter-arguments that the other side may raise.
Consider also what remedies you are seeking from the court should any one or all of
your submissions be successful in law. A respondent generally seeks a dismissal of
the appeal but may concede and simply ask for a retrial if their position is particularly
weak (best not to give up, try showing a retrial would make no difference to the

Possible sources of information are textbooks, casebooks, reported cases and articles
(as well, of course, as lectures you attend!).

6. What is a Submission?

Unlike the real thing, where a full memorial detailing all of counsel’s arguments is
submitted, mooters are only required to present an outline of their submissions. These
should contain, in the order in which they are to be submitted, a brief statement of the
point that will be made by counsel and a list of all of the cases and materials that will
be drawn upon to support the argument being presented.

The written submissions that will go to the judges (make sure you get them in on
time!) should be no more than two typed pages of text. Of course, you will need to
make up a far more detailed set from which you will make your oral submissions.

On the next page is an example of written submissions. You should lay out your own
submissions in the same format.


        BETWEEN                          PORTIA HUNTINGTON-BROWNE

        AND                              BOB BRIBBER


First Submission
That a stay of proceedings would involve an exercise of discretion contrary to that suggested
by Lord Diplock in Makshannon v Rockware Glass [1978] AC 795 at 812

        a) It is possible for more than one natural forum to exist in dispute.
                In the Marriage of Tachenbach (1980) 6 FAMLR 232 (distinguished)
                Cook Industries v Galiher (1979) 1 Ch D 439 (applied)

        b) If the Court does not accept that NSW is the natural forum for the dispute, it is
           submitted that the situation is at worst equivocal. On the facts various personal
           advantages exist which may persuade the court not to allow a stay of proceedings.
                Devine v Commentatio Co Ltd [1975] NL 63
                Girgis v Flaherty [1984] 1 NSWLR 333

Second Submission
That there was no general duty of care owed by the Appellant to the Respondent in respect of
automobile accidents in which the Appellant was not a participant but merely a bystander, and
as such the direction of the Trial Judge was wrong in law.
                 Northbottom v Reginald (1977) AC 213 (distinguished)
                 Motor Traffic Act 1987 NT ss.54-56 (considered)

        a) In the alternative, there can be no negligence on the part of a participant who
           fails to act, only one who acts carelessly:
                Barbarossa v Tangier SS (1944) 2 HLR 789
                Marmoset v Ginger (a minor) (1905) 6 CLR 324

7. Writing Your Submissions

   a) Order of Submissions

You should always lead out with your strongest submissions. In that way, if you begin
to run out of time, you can leaves aside weaker submissions.

   b) Selection of Authorities

Do not discuss the entire case history of a proposition that is supported by more recent
authority. Remember, you have only twenty minutes in which to make all of your
submissions. Succinctness is a mark-winner, especially if the law is on your side. The
more difficult your position, the more detail you may need to go into. Do not cite
every case you have read, but instead choose the most relevant and authoritative.

A case has binding authority if:
   a) It was a decision of a superior court with the same jurisdiction (e.g. the High
       Court of Australia is superior to the Supreme Court of NSW, a Full Court
       decision is binding on a judge sitting alone etc.)
   b) The decision was on the same issue of law, AND
   c) The decision is a clear principle supported by at least a majority of that court

A case has persuasive authority if:
   a) It is a previous decision of that same court (remember stare decisis!)
   b) It is a decision of a court of similar standing in another jurisdiction (e.g. the
       Victorian Supreme Court and the NSW Supreme Court)
   c) It is a decision of a court of sufficient standing applying the same rules of law
       or statute (e.g. UK Court of Appeal decisions on principles of evidence may
       have persuasive authority in the Supreme Court of NSW)
   d) It has more persuasive authority if it is a unanimous decision

8. The Oral Presentation of the Case

   a) Court Etiquette

Judges should always be addressed as “Your Honour”. When there is more than one
judge sitting on the matter, they are referred to collectively as “The Court”, unless one
judge has asked you a question and you are answering her/his question. How often
should the term be used? If the court is not a Court Martial, then the title “Your
Honour” or “The Court” is used only whenever counsel would otherwise say “you”.
As such you should say, “If your Honour will turn to page…”. The only exception to
this is when answering a question. You should then say, “That is correct, your

If a judge/the Court makes a ruling during the conduct of the moot, counsel must
submit to the ruling. This is done by saying “May it please the Court”. Then get on

with what has been ruled on or, where applicable, move on to something else, such as
a new argument or a new submission, depending on what the ruling is.

You should use the word ‘submit’ and its cognates when presenting your arguments
(“submissions” from now on!). Rather than saying things like, “the respondent
argues/says/suggests/believes etc”, you should simply say “the respondent submits

One should refer to co-counsel as “my learned junior/senior’ or “my learned
colleague’. Refer to opposing counsel as “my learned colleague”.

   b) Making Your Appearances

This is the way you introduce yourself to the Court at the very beginning of the moot.
It is a good chance to make a favourable impression on the judge from the outset.
When the judge’s associate (or the judge if there is no associate for the moot) calls the
case and names of the parties, the senior counsel for the appellant will start, followed
by his/her junior, then the respondents.

If both counsel on each side are appearing for/against the same appellant, then each
side’s Senior Counsel must rise and say:

“May it please the Court, my name is Charles Kent and I appear for the
Appellant/Respondent with my learned Junior, Ms Lane.”

However, if counsel on each side are appearing for/against different appellants, then
all of the counsels must make individual appearances must rise and say;

“May it please the Court, my name is Charles Kent and I appear for the appellant,
Bruce” OR
“May it please the Court, my name is Charles Kent and I appear for the Respondent,
James” OR
“May it please the Court, my name is Charles Kent and I appear for the Crown against

   c) Stating the Facts of the Case

The first thing a mooter should deal with in her/his oral submissions is the facts of the
case. This can be done in one of several ways depending on the level of detail
required. The counsel who speaks first should normally summarise the facts in some
detail without reading the question:

“In summary, your Honour, the facts in this matter are as follows…”.

For later speakers the facts can be outlined in less detail. One of the following is

“Perhaps if I may outline the facts as they are pertinent to my submissions…”.

“Can I take it that your Honour is aware of the fact?…”.

   d) Summarising your Position

Counsel who speaks first should:
         (i)    indicate the general field of law with which the case is concerned;
         (ii)   briefly outline the central issue of the case.

Each counsel should inform the court of:
          (i)    the major issues and his/her attitude to them;
          (ii)   the submissions which they intend to make; and
          (iii) the relationship between the various submissions.

Senior Counsel should also (very briefly, i.e. one sentence) outline the submissions to
be addressed to the court by co-counsel.

For example, counsel’s summary might be along the following lines:

“Your Honour I shall be making four submissions. The first submission is that the
Appellant’s conviction should be quashed on the grounds of insufficient evidence and
a dangerous direction from the trial Judge to the jury. The second submission is….
The third submission is ….
Turning to my first submission which was [repeat]. In support of this I wish to make
the following subsidiary submissions…”.

(e) Citation of Cases

Cases should be cited in the following way:

Royall v. R (1991) 172 CLR 1:
           (i)     Initial Citation: “Royal against the Queen, reported in 1991 at
                   volume one hundred and seventy-two of the Commonwealth Law
                   reports at page 1.”

           (ii)    Subsequent citations: “Royall against the Queen” or “Royall”

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404
   (i)    Initial citation: “Waltons Stores Interstate Limited and Maher, 1988,
          volume 164, Commonwealth Law Reports at page 404.”
   (ii)   Subsequent citations: “Waltons and Maher”

NOTE: In civil cases, the “v.” means “and”, but in criminal cases it means “against”.

(f) Answering Questions from the Bench

Questions from the Bench are one of the most important aspects of mooting are to be
welcomed, not regarded as impediments or interruptions. They test strength of
argument, familiarity with the facts and with the law. They provide a chance for
mooters to show how clever they really are. Charm the Bench with your courtesy and
profound learning. The following are some pointers to remember when facing a
barrage from the bench.

Look the Judge directly in the eye. Do not:
1) Look away                                           (“I am about to lie”)
2) Fidget                                              (“Whatever!”)
3) Shuffle your papers                                 (“Get on with it!”)
4) Roll your eyes                                      (“Please take 10 points off me.”)

If you wish to deal with a particular question at a later time in your submission, all
you may have to do (but the Judge may not agree!) is say:

1) “I intend to deal with that issue at a later stage in my submission”

2a) “If it pleases the Court I shall address that issue now” (A good idea if it is time to
move on and that was your next point anyway – judges often want to make you do

2b) “If it pleases the Court I shall explain fully when I reach that part of my
submission.” (I haven’t finished this part yet. Don’t get ahead of me!)

Another, very good approach is to say:
“I intend to deal with that issue fully in my third submission. However, the short
answer to your Honour’s question is…”.

If you wish to deal with the question as it relates to your next submission say:

“Indeed your Honour, that exact question is address in my next submission. If the
Court turns to page two you will see that I would in fact submit …”.

After all, often in mooting a question is a deliberately leading question aimed at
getting you onto the next submission!

In the unfortunate event that you have no idea about a particular case or question
raised, say:
                     1) “Your Honour, I am afraid I cannot assist the Court on that
                         point.” OR
                     2) “ I have nothing on that your Honour”

If you wish to stall for time as you organise your material, say:
                      1) “I am not sure I understand your Honour’s question.” OR

                    2) “Is your Honour referring to…. No? Well, perhaps….”

g) Applying Cases to the Facts

Where a case appears to be relevant, you should take into account:
  1) Explain the facts (“On similar facts your Honour, the court held”)
  2) Note the court in which the case was decided (This will dictate whether the
      case is of persuasive or binding authority)
  3) Explain the precise ratio decidendi of the case – this will dictate whether the
      case is applicable or whether it can be distinguished because the reasoning
      does not encompass the fact situation before the court
  4) Explain the relevance of the case:
          (i)     By similarity of the fact situation
          (ii)    As authority which is persuasive, binding or recent (use the most
                  recent authority on the point).

The case can be:
   1) Applied: The ratio is applied to the facts before the court
   2) Followed: Previous decisions on the same matter are followed
   3) Distinguished: The same reasoning is applied but with a different result to the
       previous case which embodies an applicable principle
   4) Overruled/Ignored: Where the case is not on point, is outdated or is a bad
       decision on logical, authoritative or policy grounds. Easier to do if it is not
       binding in any way.

h) Steering the Court

Often the judge, by asking a question may:
   1) Take you down a path you do not wish to travel and which is tangential to the
       issues you seek to discuss. OR;
   2) Lead you down the garden path to test you out.

In this situation you must stop the progression, perhaps by saying:
    1) “Although the issue is related, your Honour, is not decisive. What is decisive,
         it is submitted, is the point I raised earlier…”. OR:
    2) Bring the court back to the issues: “My submission is mainly however
         concerned with X which is decisive because…”.

If you have exhausted a submission you have been making and want to move the
Court onto a new submission, try:

“If there are no further questions, your Honour, I shall turn to my next submission.”

(i) Ending your Submission

Apply the legal rule which you have formulated to the facts of the case you are

State the order you wish the court to make:
    1) “Your Honour, I seek the court’s assistance to quash this verdict and order a
        retrial on the ground that the direction made by the Trial Judge was unsafe…”.

Check that there are no further questions:
   1) “If there are no further questions, your Honour [look at the Judge for a
       moment] that concludes my submissions.”

OR, if you are running out of time:
  1) “Your Honour, I see that I am short of time so I would like to explain briefly
       my final submission…”. OR
  2) “At this point I would like to conclude my submissions by stating that [state
       order or decision sought].”

If you run out of time completely, finish what you are saying as quickly as possible,
introduce no new submissions, state the action you wish the court to rake, and sit
down as quickly as possible!

j) A Note about Structuring your Submissions

You should put the most important matters and the strongest arguments first. You
should also have alternative submissions for when the Court appears not to be on your
side. In superior courts (Court of Appeal and High Court) make submissions on policy
issues if you can and especially where there are no legal grounds left to argue on.
Make a submission specifying the remedy sought.

k) A Note to the Team Speaking Second

You must reply to the opening team’s arguments. You should concentrate on reducing
the strongest arguments of your opponents (where logically possible) and, if opposing
counsel has replied to questions from the bench in an unsatisfactory manner deal with
those questions. If the opponent’s arguments have been properly anticipated by your
existing submission, it is better to rebut in the course of presenting your own
submissions (just like debating!).

l) Other Considerations

As well as substance, style is also important. Therefore;
   1) Do not read overly from your notes!
   2) Maintain eye contact with the Judge(s)
   3) DO NOT quote lengthy passages form cases, and DO NOT read quotes
   4) DO read any quotes slowly and in a normal tone of voice!
   5) DO NOT use any distracting body movements!

m) Conclusion

The most important thing to remember is that your job as a mooter is to persuade the
judge that your interpretation of the law and its application to the facts is correct. For
that to be possible the judge must be able to follow and understand your arguments. If
your submissions are too complex or your presentation is poor, the judge will not
know what you are talking about. On the other hand, if you spend too much time on
basic propositions and gloss over the moot points the judge will think you aren’t
really dealing with the issues. There is a fine balance to be struck. An important skill
is to be able to read the signs coming from the judge. If the judge looks bored it might
be time to move on to your next submission. And if a judge ever falls asleep,


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