1006 Lecture 8 - Mooting 2 - Moot Problems PDF

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Robert Collinson and Sharon McAvoy. Full Lecture Notes....

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1006 – LAWYERS SKILLS: LECTURE 8 - MOOTING 2 - MOOT PROBLEMS: What is a moot? A moot problem is a hypothetical case concerning an area a core subject on a qualifying law degree program. Put another way, a moot is a debate about the law, and you will take sides in that debate. This means that the areas covered will be contract, criminal, equity and trusts, property, public and tort law. Moot problem questions are set as part of module assessments and internal/external competitions. The background of the case will be set out along with the decision of the court and the basis for its decision. The grounds for the appeal will be clearly set out. All of the relevant facts will be set out in the narrative of the moot problem; you need to focus on the legal arguments. Reading the moot problem Sometimes it’s can be difficult reading a scenario which contains details of a case and the grounds for a decision. However, with a moot problem, the background facts of the case are kept simple so that the legal arguments can be focussed upon. You need to take time to read the moot problem carefully and make notes. You may need to read it a few times so that the legal issues become clear. This is quite normal. Once you get used to reading moot problems you will see that they all follow a standard format. It is very useful to identify the components of the moot problem, it will help you make sense of it. The moot problem will always state which appellate court in which the moot will take place. An appellate court is a court where appeals are heard. So according to the hierarchy of the courts in England and Wales, the highest appellate court is the Supreme Court and second to this is the Court of Appeal civil or criminal division. So, the heading may read: IN THE COURT OF APPEAL (CIVIL DIVISION) The moot problem will also set out the identity of the parties to the proceedings. As with all court papers, there is a protocol as to how the parties are listed. In a civil case the claimant is listed before the defendant. In a criminal it is the Crown then defendant. This will look like: JOHN SMITH -and-

JAMES JONES The moot question will then set out the background facts. Do not attempt to elaborate on the facts, you must just deal with the facts as they are set out. You must not infer nor invite the judge to do so. You must stick to the facts even if you think that you have a weaker argument and wish you could change them. The moot question will provide an explanation as to how the case has ended up in the appellate court. For example, the case could have begun in the High Court, then it has went to the Court of Appeal and the finally ending in the Supreme Court. The moot problem will set out the lower court’s decision. You must identify what the grounds for the decision were and be sure that you understand this. The moot problem may or may not state the grounds of appeal. In any event, the grounds of appeal are the challenges to the grounds for the decision of the lower court. Who do you represent? You will be assigned a role which will be either: -

Lead Appellant Junior Appellant Lead Respondent Junior Respondent

You have to be very careful to check you are researching the argument for the right party, if you are unsure, check the list on Blackboard or ask the moot co-ordinator. Work with your partner to establish the relevance of the facts and, what are the lead and junior arguments. You may feel that you have a weaker case, you may feel disadvantaged, but the legal arguments in a moot will always seem more favourable to one side than the other. However, the weaker case can be an advantage because it presents an opportunity to be creative and provide reasonable arguments and at the same time demonstrating to the court your advocacy skills. You will win points for this. For these reasons, most mooters would rather have the weaker case. So do not feel disadvantaged if you find yourself in this position. Legal reasoning Reasoning can be classified as either deductive or inductive. Deductive reasoning for the purpose of legal reasoning requires the application of a general legal rule or what is called the major premise. This method of reasoning is the basis of all legal reasoning, you could say that this is why it is taken that lawyers are good at solving problems. The legal rule is applied to the relevant facts, or the minor premise, of the moot problem.

From this a conclusion can be drawn. Inductive reasoning enables an argument to be formulated from a number of sources. An example would be a rule in a statutory provision and then two cases which interpret this rule. Undertaking Research You need to research the moot problem so that you can put forward oral submissions in the moot and also draft your skeleton argument. The submissions and the skeleton argument must cover your positive and negative cases in support of your argument. For example, your positive cases are what you will rely on to argue why the party which you represent should succeed. The negative cases are what you rely on to argue why the other side’s case should fail. Each case should be persuasive, remember you are trying to persuade the judge to agree with your argument. You may feel that you are able to devise your own approach to research. If not, then use the following process: understand the legal context- what area of law does the moot cover e.g. Contract undertake research- research each ground of the appeal identify arguments and the relevant supporting authorities- what are your positive cases and what are the authorities you will use to support them identify and refute the other side’s case- each side must serve upon the other side a skeleton argument and list of authorities. Use these to prepare a negative case which refutes the other side’s arguments. Authorities Use Westlaw, LexisNexis etc Also, a good tip is to look up cases which are cited in footnotes as these can uncover some useful cases that support your argument. However, it is easy to become overwhelmed with the number of cases you will come across so you need to develop a method for filtering the most relevant. Cases which come up again and again in a certain area such as Donoghue v Stevenson in Tort or Carlill in Contract should be a good clue as to their relevance. Read case digests, if it is relevant, then read the full report. Always read the most recent decision first, be careful to make sure that a case did not get decided in the CoA if you are reading it in the High Court. Judges will explain what the law is and then provide their reasoning or ration decidendi. This is not always clear so you will need to read over a few times to be able to spot this.

The views of dissenting judges can also be useful as part of your persuasive argument but be careful as the other side may use this argument against you as the reasoning of the dissenting judge may not support your case although their comments may do. Select the strongest arguments to support your case, remember you will be time constrained, so you need to use your time well. Once you receive the other sides list of authorities and skeleton argument you will be able to complete the research process. You need to develop your negative case by refuting their argument. The skeleton argument will outline what their legal arguments are and ask yourself:  

have they identified the relevant legal rules? (major premises) have they applied those rules correctly to the facts? (minor premises)

Then undermine their arguments by    

demonstrating the authorities do not represent the law they have misunderstood or misread the authorities these authorities are distinguishable on the facts of the present case and if the court were to accept their argument, then it would be against public policy were the decision was to be relied upon in future cases. It could case a floodgate situation.

Remember:   

do not underestimate how long research can take moot problems have no clear answer, there is no right or wrong decision, it is all about putting forward a convincing and strong argument. work as a team...