Okay. So you've
got your first mooting problem. Aaaagh! Where to begin?
Well, first, lets make a few assumptions.
- you're a law student
- you know the rules about precedents
- you know how to find law cases in the library, and how citations work
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.
When this is done, there are usually two places to start:
- 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:
- Tort : Textbook on Torts, Michael A Jones
- Contract : Contract: cases and materials, H G Beale, W D Bishop, M P Furmston
- Criminal : Criminal Law, Smith & Hogan
- 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 Information from a textbook more than five years out of date should be double checked to see whether any more recent cases have affected the legal position. - 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.
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.
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.
- Smith sues
Jones over negligent work.
- Smith = claimant
- Jones = defendant
- Smith wins.
Jones appeals against the decision to the Court of Appeal
- Smith = claimant and respondent
- Jones = defendant and appellant
- Jones wins.
Smith appeals to the Supreme Court.
- Smith = claimant and appellant
- Jones = defendant and respondent
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.
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.
There are a number of ways to support a legal argument:
- Authority
- Reason and logic
- Policy arguments
The novice should concentrate solely on use of authority. Authorities can be (in approximate order of importance)
- Decisions of the European Court of Justice
- Supreme Court Cases
- Court of Appeal Cases
- Supreme Court/Appeal judgments in other jurisdictions based on English law
- Other English cases
- Quotations from learned articles and textbooks (see notes below)
- American/Canadian Supreme Court judgments (see notes below)
- 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
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.
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.
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'
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?'
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.
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There are a number of possible ways to do this
- 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.
- Errors in citation - you may be lucky enough to spot an
error in the citation. Possibilities include:
- 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
- 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
- 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
- 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.
- 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.
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