MURDOCH UNIVERSITYS MOOT COURT BENCH PRESENTS THE MOOTING

MURDOCH UNIVERSITY’S MOOT COURT BENCH PRESENTS THE MOOTING BASICS SEMINAR 2015

AN INTRODUCTION TO MOOTING GIZEM ATASOY

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

WRITTEN SUBMISSIONS & RESEARCH LLIFEN PALACIOS NUNEZ

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: • Case. Base (Lexis. Nexis) • 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 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 SCARLETTE DE LAVAINE

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’ • •

COURTROOM PROCEDURE • • 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 ADRIANA COSTANZO

ORAL PRESENTATION • • 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 • • 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 • • 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 DANIEL MCCARTHY

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 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 this matter” • This is better than bluffing or failing to answer at all with

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…”

QUESTIONS?