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Mooting Workshop

Mooting Workshop. Moot Court Bench Murdoch University. Outline. Research and writing presentation Oral advocacy presentation and demonstration. Written submissions. Outline: What is a written submission? What is the format for written submissions?

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Mooting Workshop

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  1. Mooting Workshop Moot Court Bench Murdoch University

  2. Outline • Research and writing presentation • Oral advocacy presentation and demonstration

  3. Written submissions • Outline: • What is a written submission? • What is the format for written submissions? • What are the elements of written submissions? • Supporting submissions with propositions • Conclusions and sign-off • List of authorities

  4. What a written submission is • Document that a mooter presents to the court outlining the key elements of the party’s argument • Structures the mooter’s argument and provides an authority for each submission made • Essentially: skeletal outline of what mooter will say

  5. First page of the written submission • Outlines: • the court in which the matter is being heard; • the number of the matter and the year; • the names of the parties involved in the matter; • the party making the submission; and • the name of the counsel making the submission.

  6. First page header example IN THE HIGH COURT OF AUSTRALIA NO 005 OF 2010 BETWEEN: HAPPY BUNS BAKERY PTY LTD Appellant AND SHOPPER CARD LTD Respondent __________________________________________________________________________ APPELLANT’S SUBMISSIONS (Senior Counsel – John Smith) __________________________________________________________________________

  7. Submissions • The submissions are the skeleton of your argument • Break it down as SIMPLY and succinctly as possible for the judges to read

  8. Elements of a submission Use the IRAC method: • State the issue • State the relevant law (provide your authority/case) • Briefly explain why it applies to the facts • Draw the conclusion you want the court to make

  9. Submissions • Usually, around three submissions will suffice • Number of submissions will vary according to the question and your own style • This will not necessarily reflect the strength/weakness of your submissions

  10. Conclusion and sign-off • After the submissions, add a sentence telling the court the outcome you wish to achieve. • Then add the date and sign off.

  11. List of authorities • Last page of your written submissions • Start with the same header you have on the first page • Give the cases you have referred to in alphabetic order and numbered

  12. List of authorities: example (without header) ______________________________________________________________________ APPELLANT’S LIST OF AUTHORITIES (Senior Counsel – John Smith) ______________________________________________________________________ Legislation 1. Evidence Act 1906 (WA) Cases 1. Perry v R (1982) 150 CLR 580 2. Makin v Attorney-General (New South Wales) [1894] AC 57 3. Markby v The Queen (1978) 140 CLR 108 4. Pfennig v R (1995) 182 CLR 461 5. DPP v Boardman [1975] AC 421

  13. Before we continue • Questions? • Next half of the presentation will deal with oral advocacy and courtroom etiquette.

  14. Oral advocacy and courtroom etiquette • Outline: • Courtroom etiquette • Oral presentation of argument • General points on public speaking

  15. Courtroom etiquette • Outline: • Attire and appearance • General rules of etiquette • Seating • Language • Courtroom procedure • Taking appearances • Speaking order

  16. Attire and appearance • Dress conservative • Men: suit (if you have one) and learn how to wear a tie – all the way up! • Women: business attire • Hair should be neat • Long hair - tied back • Minimum jewellery

  17. General rules of etiquette • Never approach the bench when addressing the court • If your opponent makes an outrageous argument, you must make no facial expressions whatsoever • Have your hands on your lap or on the table – sometimes a good idea to make notes, even if you are just scribbling

  18. General rules of etiquette (cont.) • No speaking with co-counsel – discretely pass written notes • (However, this should not be necessary as you are expected to work individually and should not need to speak with your co-counsel anyway) • When speaking: hold onto the lectern and keep hand gestures to a minimum • Less is more!

  19. General rules of etiquette (cont.) • Avoid condescension and theatre • Modulate your voice to how far the bench is from you • Excessively loud speakers come off aggressive and really quiet speakers come off timid

  20. General rules of etiquette (cont.) • At the lectern, avoid copious amounts of paper • If you must, organise a file for the paper, in order to assist you when you stand up to speak

  21. Seating • From the point of view of the judge: • Appellant is to the left • Respondent is to the right

  22. Language • Refer to your judge as “your Honour” • (To an extent) the more you do this the better

  23. Language (cont.) • In referring to your Junior or Senior Counsel (also first and second appellant), say “my learned colleague” • In referring to your opponents, say “my learned friend” • But always address your counsel or opponent through the judge, not directly!

  24. Courtroom procedure • When the judge enters, the court orderly will say, “all rise!” • We all rise • We bow to the judge whenever the judge chooses to acknowledge us • We then sit when the judge chooses to sit

  25. Taking appearances • Appearances are simply introductions • Judge: “I will now take appearances” • Senior appellant: “May it please the court, my name is ___ and I appear with my learned junior ___ for the appellant, ___” • The senior respondent then gives appearances

  26. Speaking order • Senior appellant • Senior respondent • Junior appellant • Junior respondent

  27. Oral presentation of arguments • Outline: • Case theory • Special role of first/senior appellant • Signposting • Questions from the bench • Common questions asked by judges • Closing

  28. Case theory • A case theory is a brief and catchy statement that reflects the central idea of your argument

  29. Case theory (cont.) • Have a think about whether you have the moral high-ground, or whether your argument upholds the law without question, etc • Have a think about logic or common sense behind the law you’re arguing (this is often referred to as the “policy” behind the law)

  30. The special role of senior appellant • There are two things that a senior appellant does that no other speaker gets to do

  31. Firstly • They offer the judge a summary of facts • Something along the lines of “Your Honour, before I proceed, would the bench like a summary of the facts?”

  32. Secondly • Dispensing of formal citations • After the senior appellant refers to their first case, s/he will say “Your Honour, I ask that we dispense with full citations”

  33. Dispensing citations • The judge will then usually say, “yes, that’s fine”. • The purpose of dispensing citations is so that the senior appellant and every other speaker may refer to cases in a abbreviated form • Eg instead of saying • “In Balmain New Ferry Company Limited and Robertson 1906 volume 4 of the Commonwealth Law Report page 379 at page 384, Chief Justice Griffith held…” • You can just say • “in Balmain Ferry at page 384, Chief Justice Griffith held…”

  34. Signposting • “Signposting” is the skill of keeping the judge/s aware of where you are in your arguments

  35. Firstly • Outline your arguments for the judge in your introduction • “Your Honour, we submit ___.” • “We support this submission by way of 3 propositions Firstly… Secondly…” and so on

  36. Secondly • After the introduction, make it clear to the judge where you’re going • “Your Honour, moving now to my first submission”

  37. Thirdly • After making every submission/proposition, make it clear where you’re going • “Turning now to my first proposition” • “Moving now to my second proposition” • “Turning now to the second submission your Honour”

  38. Signposting • Remember, mooting is about assisting the judge in understanding your argument • The judges are your friends • This ties in with questions asked from the bench

  39. Questions from the bench • This is where the best speakers become apparent • Moots are often won by how well a mooter can answer a question from the bench • Answering questions is about how persuasive you can be, not how book-smart you make yourself out to be

  40. Questions from the bench (cont.) • A good answer to a question requires a good knowledge of the law and an awareness of the ins and outs of your argument. • A good answer is one that is clear, simple and answers the judge’s question

  41. Questions from the bench (cont.) • A simple and direct answer can easily be achieved by first stating, “Yes your Honour” or “No your Honour” • Depending on the question, sometimes this is all that is needed • But beware, it may not be needed at all – remember to let yourself soak in the question

  42. Questions from the bench (cont.) • If the judge pushes you to a point where you can’t answer the question anymore, then admit so • “Your Honour, I cannot take this submission any further” • Treat this as a last resort

  43. Questions from the bench (cont.) • Always wait for the judge to finish their question • Take a few seconds to pause and think about your answer – do not panic • When you are speaking and you see that a judge wants to ask you a question, then pause and let them ask you

  44. Common questions from a judge • “What are the facts of that case?” • “Where in the case can I find that?” • “Which judge said that?” • “If, hypothetically, we don’t accept your submission, where does it leave your argument?”

  45. Closing • A good closing will highlight the good points you have made in your orals • Also highlight the weaknesses/inconsistencies that your opponent has or will make. • “In conclusion your Honour…”

  46. Length of the oral argument • Will vary according to the competition • In this instance, each student will be allowed 20 minutes to present their argument to the bench • There is no time allotted for rebuttal or surrebuttal

  47. Length of the oral argument (cont.) • You may ask for additional time if necessary: • Example: “Your Honour, I see that my time is about to expire. May I have another 30 seconds to conclude my argument?” • However, you should avoid this if possible • Read the bench. They can say no

  48. General points on public speaking • Grip the lectern! • Speak slowly. Remember, one can always speak slower. • 100 words per minute is a good pace • Maintain eye contact - the best speakers will have maximum eye contact as they know their arguments inside and out

  49. General points on public speaking (cont.) • Avoid reading – again, maximum eye contact is a result of a mooter knowing their arguments inside and out

  50. Further references • http://jessup.whitecase.com/multimedia/ (contains a series of moot excerpts from the Jessup competition that are designed to give new competitors relevant examples of the most important aspects of mooting.) • http://www.law.murdoch.edu.au/mcb/publications.html (further mooting tips and publications produced by the Murdoch University Moot Court Bench)

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