Mooting Tutorial 1 (Answer) PDF

Preview

Summary

Answers for Mooting Class during Tutorial Week 1...

Description

Mooting Tutorial 1 1) Briefly described what is moot or mooting

According to the Cambridge dictionary, moot is to suggest something for discussion. On the other hand, mooting is the oral presentation of a legal issue or problem against an opposing counsel and before a judge. It is perhaps the closest experience that a student can have whilst at university to appear in court. The argument follows the conventions of argument used in real court. There are 5 or more participant in a moot which are a judge and 4 mooters in two teams. The hypothetical case argued in court is referred to as the moot problem which is devised in order to highlight particular issues of doubt in the law. The issues of doubt may arise from the case law or statute. They are referred to as ground of appeal. Most moot problems contain 2 grounds of appeal and each member of each team argues one side of each ground of appeal. Once the argument is completed then the moot judge will give a short judgement. Mooting experience can have a positive impact on your future career. The legal profession is an increasingly difficult one to enter, and some application forms even demand that a candidate can provide evidence of their advocacy or mooting experience. Mooting will also help you to build confidence in public speaking, general research, and presentation skills, which are useful skills you can transfer to most careers.

2) Briefly differentiate between Moot & Mock trial

Moot Trial Moot is more formal; it’s just more of a conversation with the judges, instead of trying to extract information from the witnesses. – the way you argue Simulates the appellate level proceeding (it involve appellate advocacy) Involves participant students making arguments to, and answering questions directly from, a panel of judges only (not from a jury),  who score the students/lawyers based on their skills. Participant students write a brief and then argue their case. As the participants progress into higher rounds, they argue both “on” and “off” their written brief. It is similar to the oral advocacy exercise done many Law School´s first year (Legal Research and Writing). In moot any position you hold can be challenged by the judge and you need to be able to immediately defend it.

Mock Trial Mock is more professional; the way that you talk and act is more structured. – the way you argue Simulates the trial level proceeding (It involves trial advocacy) Involves witness testimony, with statements and arguments (in hypothetical cases) directed to a judge and a jury, who score the students/lawyers based on their skills The trials are essentially simulations of real-life litigation. Competitors offer evidence, examine witnesses, and present opening and closing statements. In addition, participant students are required to follow the rules of court. Mock Trial is more consistent; you don’t have to worry about someone challenging your position directly

3. In relation to the mooting question, describe the followings:

i)

Cover Page

Consists of the name of: 

The moot court competition



The court before which the parties are appearing



The names of the parties, whether you are the plaintiff or the defendant



Your team code and any other necessary detail.

ii) 

Table of Contents lists the contents in your memorial.

iii) 

Moot Problem Two grounds of appeal, argued by each side

iv) 

Problem Clarifications & Answers To identify and gain a clear understanding of in which component of the focus area is the problem (or strength), and which aspect of the component is the area of concern.

v)

Lead Counsel Skeletal Arguments



Must be brief, in simple language



It is a brief statement to legal arguments of a counsel



Refer the most relevant cases



Skeletal argument will make reference for the authorities being relied on for each contention in the arguments

vi)

vii) •

Lead Counsel Written Submissions 

State the facts of the case which usually done by the lead counsel



State all the grounds of appeal before dealing with each one of them



For the ground of appeal= law, application, and conclusion



Then proceed with closing submission Co-Counsel Skeletal Arguments

Must be brief, in simple language

•

It is a brief statement to legal arguments of a counsel

•

Refer the most relevant cases

•

Skeletal argument will make reference for the authorities being relied on for each

contention in the arguments viii)

Co-Counsel Written Submissions

•

State the facts of the case which usually done by the lead counsel

•

State all the grounds of appeal before dealing with each one of them

•

For the ground of appeal= law, application, and conclusion

•

Then proceed with closing submission

ix)

Index of Authorities

Similar to the bibliography where there are list all the cases you cited, the books, the reports, the statutes you’ve used and any other material that you have used to prepare your memorial. x)

Bundle of Authorities

Involves the lists the contents in your memorial

4. State the jurisdiction of the Court in relation to the Moot problem. If you are counsels for the appellant in the Court of Appeal – you are appealing against the decision of the judge at first instance; you 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 Federal 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.

If you are counsels for the respondent in the Court of Appeal – you must respond to the grounds of appeal put forward by the appellant, as your aim is to have the Court of Appeal judgment reaffirmed; You must argue the reverse of what is stated in the grounds of appeal In other words, you must 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.

Federal Court If you are counsels for the appellant in the Federal Court – 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 Federal Court can depart from its own previous decisions if the earlier cases are carefully distinguished on their facts.

If you are counsels for the respondent in the Federal Court – 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

5. Comprehend the rules of mooting in an appeal case.

First, ensure that you have the attention of the bench before you begin (this also applies during rebuttals and surrebuttals). Once you have set up the rostrum, (subtly) use eye contact to indicate to the entire bench that you are ready. If a member of the bench is busy with something, wait patiently (unless another member gives the cue to begin) and do not give anything away, not even

with your body language.17 The eye contact used to indicate readiness should exude conviction and confidence in the case, as opposed to tentativeness or fear. In addition, the microphone is there to help establish one’s presence – use it well.

Second, although a large part of mooting is a dynamic process of responding to arguments and concerns and cannot (and should not) be scripted, the opening is something that has to be penned down in advance and internalised completely (that is, practiced over and over again). Coming up with a compelling narrative on the spot is plainly unwise even for the highly intelligent, but reading off a script for the opening is even more unwise. Mooting is a form of public speaking that is different from other types of public speaking in that many things have already been thoroughly researched and memorised or internalised in advance, and the mooter cannot appear rehearsed or rigid but must appear totally on top of his material in presenting them. Why should a bench have any confidence in a counsel who is unsure of his opening?

This leads us to the third point, which is that the opening should not be presented in an over-thetop fashion. Watch recent videos of the finals of the best international moot competitions18 and you will discover that there really is little room for theatrics or drama at any point in a moot (although this does not mean you should not be assertive or even emphatic). Instead, the presentations as a whole usually embody a fine balance between being clinical and forceful, and the same applies to the opening. Content-wise, avoid hyperboles and mischaracterisations, and depart from saying something completely neutral. Better yet, find something that captures the essence of your case theory.19

The fourth point is that for the opening to be impactful, the mooter must keep it succinct and relevant. If the opening is segregated from the roadmap, anything more than 30 seconds for the former is generally considered unnecessary and cumbersome. Precisely because of the brevity

afforded to it, the rhetoric must, as mentioned, only be peppered with relevant points of law and/ or fact. A mooter should be able to commence on his arguments proper with not more than 1–1.5 minutes accorded to the formalities and the opening (including the roadmap).20 Note that this presupposes the moot lasts between 15–25 minutes. A final note on the opening is that should you be abruptly interrupted with a question while delivering the opening, remain calm and deferential; after the question has been answered, assess if the opening should be continued or dispensed with, and then proceed to do so accordingly....