MURDOCH UNIVERSITY

MOOT COURT BENCH

Mooting Basics Workshop

Part 1
Research and Written Submissions

WHAT IS A MOOT

S A Form of Advocacy
S Two Most Common Forms of Legal Advocacy:
S Moot
S Trial

S What is the difference?

S Major Difference

Difference Between a Trial And a

Moot
S Trial
S Facts are in Issue
S Parties disagree as to what

has happened
S Court will determine what

has actually happened

S Moot
S The Law is in Issue
S Complex or unanticipated

facts when law was made

S Inconsistent or erroneous

application of the law by

previous judgments

S Getting a solution for a

client through
interpretation of the law
S Usually legally Complex

What Makes a Good Mooter

S Make light of the complex situation

S Go to the heart of the Problem
S Bringing simplicity, rationality and elegance to a complex

problem
S Clarity of desired result
S Make clear submissions as they become the courts findings

WHY MOOT

S Personal Benefits
S Improves Self Confidence
S Improves Research and Presentation Skills
S Opportunity to work in teams
S Fun
S Professional Benefits
S Necessary Skill for Aspiring Barristers
S Showcases Capability of the Student
S Opportunity to Participate in Prestigious International Moots

Structure of a Moot

S In Senior Mooting there are four competitors per courtroom

S The two sides are Appellant or Respondent
S Each side will have a Junior and a Senior
S Seating
S You will argue different Grounds of appeal

Structure of a Moot (Cont)

S Start with formal introductions

S Then appearances
S May it please the Court, my name is Joe Blogs, and I appear

with my learned colleague, Mary Smith, for the appellant,

Backyard Pty Ltd, in this matter
S Stages of the moot

Court process
S Seating:

Court process cont.

S Speaking order:

S (This can change depending on moot)

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The Lingo

Ground of appeal basic legal point you are arguing (you usually have two per side)

Submission your arguments (each counsel usually makes three)

My learned junior/senior how you refer to your team mate

My learned friend how you refer to you opponent

Research

Introduction
There are 3 simple rules to preparing a good argument for a moot:
1. Know your facts
2. Know your causes of action
3. Know your cases
They key to each of these is preparation
Preparation gives you confidence in your argument
Preparation also allows you to present your argument properly and have an
informed (and if youre lucky) well structured conversation with the bench

Rule 1 Know your facts

S Knowing your facts is the obvious starting point for properly

researching a moot, so read your scenario several times before you

open a textbook or database
S A good way to memorise the facts of your case is to recite the facts

in a way you are comfortable with

Rule 2 Know your cause of action

Beginning you research

S A good place to begin your legal research is to read the grounds for appeal.
S A moot problem is usually, but not always, a simulated appeal where a

trial judge has decided on the case at first instance

S 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
S 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 Commentary

S Legal dictionaries are a great place to start looking for terms

you do not understand

S Use these databases to learn the key legal principles that will

be relevant in your case

Academic Writing
It can be important to understand the background behind a
legal principle in order to understand how it applies
The best way to start to understand and legal principles are
the textbooks written on the subject.

Rule 3 Know your cases

Legislation
S Once you have gained a grasp of the area of law on which your problem is based,

it is important to understand the legislative framework in that area of law:

S Negligence Civil Liability Act
S Consumer law or equity Australian Competition and Consumer Act
S Corporations law Corporations Act
S Constitutional Law The Constitution (obviously)
S Depending on the jurisdiction of your legal issue, there are 2 or 3 main databases

that you should use:

S For federal issues (consumer law or corporations law) use Comlaw
S For state issues (criminal law or torts law) use State Law Publisher

Rule 3 Know your cases

Case law
S Good use of case law is where moots are won or lost
S Cases will usually be the most important part of the moot and the most persuasive

factor which you can sway the bench with

S Cases demonstrate how judges have applies these legal principles to the facts of

these cases
S The High Court of Australia will usually have the most authoritative legal opinion

on the subject you are mooting on.

S Fortunately there will almost always be a dissenting opinion (especially if

Kirby J was involved)

S Read these decisions and know the reasoning inside and out if your case hinges

upon a split bench decision of the High Court

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S Get comfortable using legal search engines to find cases:

S CaseBase (LexisNexis)
S First Point (Legal Online)
S Westlaw Au
S Austlii (can be useful for recent decisions, but use the others where you

can)
S Make sure you use the most authoritative versions of cases:
Eg. Commonwealth Law Reports (CLR) for High Court cases

S You should look for authorities which are against you as well

as authorities which support you

S These authorities should be examined as a whole in order to

extract a comprehensive legal principle and, most importantly,

finding exceptions to them and grounds for distinguishing
them
S This way you, as counsel, can respond to your opponents case

and put forwards an argument about why your argument

should be preferred over theirs

S A previous decision in a case is only authority for the principle of law

which is the basis of the decision in that case, therefore when citing a case
it is important to know:
S The facts of that case
S The actual decision given in relation to those facts
S The reasons which have been given for deciding in that particular way
S While you will not have to volunteer these details for every case you cite,

you should be able to do this whenever requested by the court

S It is a good idea to prepare case summaries of any cases you cite

Other useful sources

International cases
S Often you will find that a good way to supplement your

argument will be to put forward legal authority from other

countries, this is especially useful if you are trying to support
a minority judgement of the High Court
S This can be especially useful in emerging areas of law:
S For example, Australia recently enacted the Personal Property and Securities

Act, similar legislation has operated New Zealand and Canada for a long time
and the most commentary is based upon these legal authority from these
jurisdictions
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Conclusion

S Once you have done all your research, you should re-examine the facts of

your scenario again in light of these legal principles

S This research will form the foundation on which you will structure your

written submissions, submissions to the bench and the way you will
develop your argument
S Once you have completed the research phase of a moot, the hard work is

done and you will find that the submissions will flow naturally and you
will have that legal principle engrained for the rest of your legal career
S So, be prepared!
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Written Submissions

Introduction
S A document outlining key elements of your argument

S Structures the mooters argument and provides authority for

submissions

S A skeletal outline of the oral argument

First page header of submissions

S The court the matter will be heard in

S Number and year of the matter
S Names of the parties involved
S Party making submissions
S Name of counsel making submissions

First page header example

Propositions

S Your proposition is the theme of your argument

S Describes what you will be arguing to the court
S Shows what you want the outcome to be
S Example:

Written Submissions

S Skeleton of your argument:

S Break it down simply and succinctly

S Logical steps to support your proposition
S Clear and easy for the judge to read and follow

Submissions

S Usually three submissions will suffice

S This can vary depending on the question
S Number of submissions doesnt necessarily reflect strengths/

weaknesses of arguments
S Numbered e.g., 1, 2, 3
S Points addressed in submissions to be numbered e.g., 1.1, 1.2, 1.3
S IRAC method of submissions

Written Submission Example

Written Submissions Example

Written Submissions Example

Written Submissions Example

Conclusion

S Simple statement of the outcome you would like the court to reach
S Add date and sign off
S Sign-off should include name, counsel position and party

Conclusion Example

List of Authorities

S Final page of written submissions

S Use same header on first page of submissions

Order of Authorities

S List in alphabetical order:

Legislation used
Cases used

1.
2.

ALWAYS cite authorised version of case

Number your authorities

Authorities Example

Difference Between Internal and External Moots

S AGLC3 style instead of numerical

S Contents page
S Memorials

Jessup example

Jessup Example

Jessup Example

Jessup Example

Jessup Example

Jessup Example

Part 2

Presenting Oral Submissions

Courtroom etiquette
S Formal environment
S Consider your appearance
S Be courteous to opponent, judge and judges associate
S Stand when addressing the court and remain behind bar table
S Only one person standing in court at once
S Dont indicate your opinion of opponents submissions or

judges comments through non verbal displays

S Never speak over judge or opponent
S Dont address opponent directly
S Dont eat / chew in court water is ok

Courtroom etiquette cont.

Language
S Judge: Your Honour
S Team member: my colleague or my learned colleague
S Apposing council: my friend or my learned friend
S Arguments are called submissions

When citing cases:

S Smith v Smith: say Smith and Smith
S Say full name of law reports
S Refer to judges as Justice (name).

Court process cont.

S Procedure:

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Presenting oral submission

Introduction
S Dont be too quiet or mumble
S Dont be argumentative
S Use simple language
S Consider your body language
S Eye contact
S Resist the urge to write out speech in full
S Time management

Preparation
Bring:
S Unmarked copies of authorities (legislation/cases) for the judge
S Copies of all authorities for yourself
S A copy of your written submissions for yourself
S Notes for oral presentation

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Oral presentation
Opening statement
S Begin with a statement that is catchy, concise and reflects the

central idea of your argument (case theory)

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)

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Oral presentation cont.

Road Mapping
S Advocates should provide a road map or outline of each submission

they will address. The road map provides structure to the argument and
the legal basis for each claim
S http://jessup.whitecase.com/multimedia/multimedia.aspx?media=7

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Oral presentation cont.

The first speaker

The first speaker has a slightly different role to the other speakers.

Summary of the facts

If requested, summary should be presented in a clear, concise and unbiased manner.

Dispensing with formal citations.

Generally, first speaker has task of dispensing with formal citations. First use of case as authority for a
submission the full citation must be said. Then, request to dispense: Your Honour, may I request to dispense with formal
citations? Thereafter, only case name (and page no. if quote) required.

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Oral presentation cont.

IRAC
S Every submission needs to be supported with law (authorities) and fact.
S Use the IRAC model as a guide (issue, rule, application, conclusion)
S Knowing the facts is the most important skill in a moot
S Always try and present submissions in a way which you believe is the

most clear and concise

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Oral presentation cont.

Opinions
S

Personal opinions should never be given in a moot.

Avoid I/we believe, use I/we submit

Body language

Closing
S

Sum up your submissions, highlighting the essential issues and how they should be resolved

Attempt to tie everything together and return to the big picture

Time management

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Questions from the Bench

Standard procedure for the judge to interject and ask questions, often to seek clarity or
test understanding of law and facts. Dont be scared - good opportunity to
demonstrate your knowledge.

Listen to the question

Do not interrupt the judge/arbitrator even if you know where the question is
leading or you know the answer

Do not get agitated even if you are being asked multiple questions at the same
time keep calm

Respond to the whole bench not just to the judge who asked the question

Be polite, even if you think the question is a simple or unnecessary one

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Questions from the Bench Cont.

Tips:
S BE FLEXIBLE
S Use direct and simple answers
S Pause to gather your thoughts
S Answer yes or no is possible and only elaborate if necessary
S Dont be afraid to disagree, but you must be able to justify position
S Dont be argumentative or dismissive
S Never speak over judge
S Be prepared to jump around in your arguments
S Your Honour, I am unable to assist the Court further on this point today.

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Reading the Bench

Why is it important to read the bench?

S

Allows you to predict the types of questions you may be asked

Gives you a good indication of the type of response you will need to give

Gives you a good indication of the manner of your response

Gives you an idea of how to manage your time before it is too late

What type of judge/arbitrator do you have?

S

Passive

Sits back and listens without really getting involved

Will give you free reign and judge off what and how you present

Will only ask necessary questions which are often well thought out

Active

Asks many questions of many different types

Will often interrupt your submissions with short questions requiring a yes or no answer/ will seek
clarification of points you make/ may ask questions which are not directly on point

Will judge off your ability to think on your feet and engage with the bench

Will judge off your ability to control the bench and focus on what is at issue

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Identifying the Question

Once you have read the bench you will have an idea of the types of questions you may be
asked

The next task is to identify what the question actually is

Steps to help you identify the question:

Listen to the judge

Do not jump in, wait until he or she has finished speaking

Pick out the actual question you are being asked

If you are unsure of what the question is first of all try to answer but frame its as:
S

Your Honour if your question is X then

If you are wrong then the judge will usually correct you/ rephrase the question.

If you still do not understand what the question is then ask for clarification:
S

Your Honour, are you asking me?

Your Honour, can you please clarify that . Is the question?

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Identify the type of response

Can the question be answered with Yes Your Honour or No Your

Honour? If so, say that.

Can the question be answered with a short answer:

S A reference to a page?
S A case name?

Can you answer with facts?

S If so, can you answer in a list? E.g. I will draw your attention to 3 main facts which

support my fact (1). (2).(3)

Can you answer with law?

S I refer your honour to the case of X v Y in which..

Does the question require a longer explanation?

S If so does the question require you to state the law, apply it to the facts and

conclude?

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Multiple Questions

S A key skill to develop is to listen carefully to each question, reformulate

the questions in a clearly organized and logical plan of response, inform

the judges how you intend to answer (implicitly seeking their approval),
and then proceed with your response.
S For example, if all three judges have asked successive and/or overlapping

questions, you might say:

S 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

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S Insert video of Jessup exhibition moot here (im still trying to get a

copy!)

Keeping on Track
Remember judges like to try to distract you!!!
Be aware of questions that are likely to lead you down the garden path

Know your case

Know what is relevant and what is irrelevant

Entertain and assist the bench BUT be aware that this is your case and when the bench is leading you

down the garden path or you are not getting anywhere with a particular argument steer the bench back to
your submissions
Some tips:

Answer the question

If a question is irrelevant say Your Honour in this matter it is neither here nor there whether ..
because

If you are not getting anywhere on a particular point say it seems that the bench is not with me on this
point so I will move to my next argument which is

If things get a bit lost, dont be afraid to remind the bench of why you are there your Honour the
crux of this matter is ..
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Workshop

Mooting workshop using practice question

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