Sample speech for mooting(bm & eng) PDF

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MOOTING –Appearing and PerformingCourtroom EtiquetteA. Ethical duties of CounselThe most important role of a lawyer is his or her duty to assist the judges in their decision- making. It is also a lawyer’s obligation to conduct the case honestly, i. you must never suppress information nor ignore a pr...

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MOOTING – Appearing and Performing

Courtroom Etiquette A. Ethical duties of Counsel The most important role of a lawyer is his or her duty to assist the judges in their decisionmaking. It is also a lawyer’s obligation to conduct the case honestly, i.e. you must never suppress information nor ignore a precedent, even if it is quite damaging to your case. What you say and do is for the judges' benefit, so keep a careful watch on them to see if they are following your argument. Allow them time to find a citation, unless they indicate you should go on. Interact with the judge. Talk to them, not at them. This would also mean that would should not suppress information or it would bring damage to your case.

B. Courtesies Mooting is a formal activity where participants take part in simulated court proceedings, usually to include drafting briefs and participating in oral argument where certain ‘etiquette’ must be followed. If one of the following rules were not followed, your result may be marked down. What to wear You may be given guidelines on what to wear by your mooting officer, or in your mooting rules. Some friendly moots are more relaxed as regards dress code while others have stricter standards. It generally adds to the atmosphere of the moot if the advocates are smartly dressed in business-like attire. Wear something smart and dark e.g. a suit and (if possible) a gown. It is important that you make a good impression on the judge the minute he/she looks at you. You will be provided with black gowns, which help to create a court like feeling for the proceedings. Where to sit The counsel for the Appellant will sit on the left of the bar table, which is to the judge’s right whereas the counsel for the Respondent will sit on the right of the bar table, which is to the judge’s left. Stand Up/Sit Down You should always be standing when speaking/addressing to the judge. If the opposing counsel stands to make his/her submission during the course of your address, you should sit down. This is to avoid the potential problem of counsels arguing between themselves rather than courteously addressing the Court. In addition, if the judge directs a question to a counsel

who is not presently standing, take a cue and sit if you are standing. On the other hand, you should stand if you are the one addressed in this instance. How to Conduct Yourself It is most important that you retain complete self-control during the course of proceedings. This applies with respect to addressing witness as well as addressing the judge. If you wish to persist in disagreeing with the judge, it is generally accepted that you do so by prefacing any contrary remark with "With respect, Your Honour ...’ or indeed, if the point is taken further, ‘With the greatest respect, Your Honour ...’. If the judge continues to disagree with you in a moot it may be a hint to drop a poor argument and move on to something more useful. Demeanor towards the Court The term ‘respectful intellectual equality’ is important when you are in Court. It is important that you retain complete self-control during the course of proceedings, which applies with respect to addressing the judge and your opponents. It is equally important to be confidence and sincere before the Court. Do not try to be funny? It’s all right however to smile when it is appropriate (as when a joke is made). Aside from that, it is also crucial to bear in mind that all teams shall avoid all unnecessary noise, outbursts, or other inappropriate behavior that distracts from the argument in progress.

C. Modes of Address Referring to other counsel When referring to you team member, the correct term to address him/her would be “my learned co-counsel” or “my co-counsel”. The two opposing mooters should never be called 'the opposition' and certainly not 'the enemy' or 'them over there'. (You would be surprised what terms are used!) The correct manner of referring to other counsel is as 'My Learned Friend(s)' or 'My Learned Friends Opposite'. Example: 'My Learned Friends opposite have cited a number of interesting cases' Addressing the Court A single male judge, in both the Federal Court and Court of Appeal is to be referred to as 'My Lord' or ‘Your Lordship’/ ‘Yang Arif’. A bench of male or mixture of male and female judges is referred to as 'My Lords' or 'Your Lordships'/‘Yang Arif-Yang Arif’; . A single female judge can be referred to as 'My Lady' or 'Your Ladyship'/Yang Arif’, although some female judges may prefer to be Lords - it may be wise to check the judge's preference before the moot starts. A female panel may also be Ladyships or Lordships. 'Your honour' is not suitable for addressing the judge in an appellate court, no matter how many times you hear it on television! Example: 'I am grateful to your Lordship'/“ Saya menghargainya Yang Arif”

D. Presenting your case General Rules Before the judge arrives, the Counsel will usually be in the courtroom. As the judge enters the court, the bailiff, if there is one, will say “Court rise” which indicates that you should stand up. You should bow to the judge when the judge bows. Only upon the judge taking his seat will you cease standing, meaning that only after the judge takes his seat would you be allowed to do the same. Leading counsel for the appellant will then prepare to deliver his speech, and when the judge indicates that he is ready, the leading counsel for the appellant should start his speech delivery. Rehearse the opening lines The responsibility of introducing the counsel for both parties to the judge and for briefly outlining the facts of the case lies with the leading counsel for the appellant. An example of an opening speech by the lead appellant would be: “May it please your Lordship, my name is Mr/ Miss … and, together with my learned co-counsel Mr/ Miss … I appear for the Appellant. My learned friends Mr/ Miss … and Mr/ Miss … appear for the Respondent. The facts of the case before the court today are as follows…”

“Dengan izin Yang Arif, nama saya Encik/ Cik … dan, bersama dengan saya rakan bijaksana peguam kedua Encik/ Cik … Saya mewakili perayu. Rakan bijaksana saya Encik/ Cik … dan Encik/ Cik … mewakili responden. Fakta dihadapan mahkamah hari ini adalah seperti berikut …”

Introducing legal issues at stake may be done after the facts have been recited: “My Lord, in the instant case, there are two grounds of appeal. First, the issue whether …; and secondly, the issue whether … My Lord, I shall be dealing with the first ground of appeal and my learned counsel co-counsel will be dealing with the second ground of appeal.”

“Yang Arif, untuk kes hari ini, terdapat dua alasan rayuan. Pertama samaada …; dan isu kedua ialah samaada … Yang Arif saya akan menghujahkan alasan rayuan yang pertama dan rakan bijaksana saya, peguam kedua akan menghujahkan alasan rayuan kedua.”

It is also possible to state in order various propositions of law, which form the body of your submission to the court. It can be something that goes like this: “It will be submitted that the appeal should be allowed/ dismissed on the grounds that … This submission relies on three propositions, which I shall deal with in turn. They are, first, that …; second, that …; and finally, that …”

“ Adalah dihujahkan bahawa rayuan ini hendaklah dibenarkan/ ditolak atas alasan –alasan berikut … Hujahan ini bergantung pada tiga pernyataan, yang mana saya akan hujahkan selepas ini. Hujahan –hujahan tersebut adalah, pertama, …; kedua …; dan ketiga/ terakhir, …”

It is important to have an opening fulfilling the order and elements stated above because it makes it easier for the judge to know which issues you are intending to leave until later in your speech. Such opening like this enables the judge to grasp the bird-eye-view of your submissions. This in turn will limit interruptions from the judge asking you about one of those issues until you have reached the point whereby you intended to deal with that particular matter.

With the introduction done by the lead counsel for the appellant, there is no need for the subsequent counsel to reintroduce himself/herself or to repeat the facts of the case, thus their opening speeches would be something like: “If it pleases your Lordship, my name is … and I represent the Respondent together with my learned co-counsel Mr/ Miss …” “ Dengan izin Yang Arif, nama saya … dan saya mewakili responden bersama dengan rakan bijaksana saya peguam kedua Mr/ Miss …”

“If it pleases your Lordship, my name is … and I am continuing the case for the Appellant (Respondent).”

“ Dengan izin Yang Arif, nama saya … dan saya akan menyambung kes perayu (responden)”

Rehearse the closing lines

Preparing closing sentence would come in handy in circumstances whereby you are thrown off your argument that you cannot carry on. Delivering good closing sentence will be more useful than simply mumbling and sitting down embarrassed. Something as simple as: “For the reasons I have given I would ask that this appeal be allowed/ dismissed” “ Dengan alasan-alasan yang telah diberikan saya memohon agar rayuan ini dibenarkan/ ditolak”

“In conclusion, I would like to invite your Lordship to hold that …, and accordingly to reverse/ uphold the decision of … and to allow/ reject this appeal. My Lord, unless your Lordship has any further questions, that concludes my submissions.” “ Kesimpulannya, Saya ingin menarik perhatian Yang Arif untuk menyatakan bahawa …, dan seterusnya untuk menarik/ mengekalkan keputusan … dan membenarkan / menolak rayuan ini. Yang Arif, sekiranya Yang Arif tidak mempunyai apa- apa soalam, saya menamatkan hujahan saya/ tidak mempunyai hujahan lagi.”

Mind your language It must always come to the mind that the language of a courtroom is different from that used in everyday speech. Therefore you should try and formulate phrases as you might expect a barrister or judge to say them. Informal phrases, such as “Okay”, “Yeah” and “All right” are not acceptable. If you are corrected by the judge on the interpretation of a case, the appropriate response would be something like “I am grateful for your Lordship's assistance” rather than “OK. Ta” or “OK. Thanks”. Hasty speech often amounts to missing out points thus it should be made a habit to speak slowly because you can form your thoughts and come out with something different from how you might ordinarily respond. It is an advocate’s job to give arguments based on legal authorities to aid the judge in making decisions. Therefore, in your speech you are merely restating the opinion of others and not giving your own opinion. This is due to the fact that the opinion of the advocate is irrelevant for the court to make its decision. As such, you should never tell the judge what you think, never suppose or even suggest. You must merely submit humbly that the judge should adopt your interpretation of the authorities given. Phrases like “I think …” or “In my opinion…” should never be uttered. Therefore the phrase “My Lord/Lady, I submit that”, “I submit …” or “It is my submission that …” should occur fairly frequently in a good moot speech. ( “Yang Arif, saya berhujah bahawa”/ “Hujahan saya adalah seperti berikut)

The speech should also give the full citation of a case as soon as it is mentioned, and the advocate should always ask the judge if he/she would like a summary of the facts of the case. For example:

“A further authority which supports this is the case of Smith and Jones which can be found in the second volume of the 1942 Weekly Law Reports at page 132. Would your Lordship like a summary of the facts of the case?” “ Otoriti seterusnya yang menyokong hujahan ini adalah kes Smith dan Jones yang boleh dirujuk dalam volume kedua 1942 weekly Law Reports di muka surat 132. Adakah Yang Arif memerlukan ringkasan fakta kes tersebut?”

Always ask the judge(s) for permission Asking the judges’ permission at various stages of the speech is also an act of professionalism: “With your Lordship's permission I would like now to...” “May it please your Lordship…” “If it pleases your Ladyship…”

“ Dengan izin Yang Arif saya ingin…” “Dengan Izin Yang Arif… “ “Jika diizinkan Yang Arif…”

Always be reminded too that your role is to assist the judges in their decision-making. What you say and do is for the judges' benefit, so it is your duty to make sure that they are following your argument. Allow them time to find a citation, unless they indicate you should go on. Interact with the judge by talking to them, and not at them. Rebuttal and Surrebuttal Each Team may reserve up to 3 minutes for rebuttal or surrebuttal. As a courtesy to the judges, Teams should announce whether they intend to reserve time for rebuttal or surrebuttal at the beginning of their oral argument, and how much time they intend to reserve. Nonetheless, it should be noted that mere failure to announce would not waive the right to rebuttal or surrebuttal. Only one Team member may deliver the rebuttal or surrebuttal. The

Team need not indicate prior to rebuttal or surrebuttal which of its two eligible Team members will deliver rebuttal or surrebuttal. As the Court’s last impression, rebuttal or surrebuttal can be very potent if done well, or devastating if not. Generally, you should use rebuttal or surrebuttal time only if you have a point to make that will directly contest a point made by your opponent. If there is none, it is sometimes more strategic to waive rebuttal or surrebuttal altogether. Rebuttal The Appellant is given the opportunity to refute the Respondent’s case through rebuttal after each side has completed its presentation of the case. The rebuttal serves as ground allowing you to address your opponent’s arguments and to set the record straight. Rebuttal is to be differentiated from rearguing your case, summarising your points, or even discussing the points that you failed to make in your main presentation. However, the scope of the Appellant’s rebuttal is limited to responding to the Respondent's primary oral pleadings – the Appellant must not argue points, which the Respondent has not attempted to make. Surrebuttal The sole purpose of surrebuttal is to refute the Appellant’s rebuttal. Hence, the scope of the Respondent's surrebuttal is limited to responding to the Applicant's rebuttal. If the Applicant waives rebuttal, Respondent may not appear for surrebuttal. NOTE: Although judges are admonished to enforce the limits on the scope of rebuttal and surrebuttal, and may take a violation of this Rule into account in evaluating an oralist's performance, there is no discretionary or non-discretionary penalty for exceeding scope of rebuttal or surrebuttal.

The Pace Your submissions should be clear and precise. Speaking slowly and fluently enables the judge to understand better what you are saying. You must also always keep eye contact with the judge to watch for any signals from him or her. In times of uncertainty, do ask: “My Lord, may I continue?” Time Keeping an eye on the clock is a must. Depending on the mooting rules that apply, the following may be excluded from the timing of the speech: quotation from cases, answers to judicial questions, and summarizing of the facts of the case (lead Appellant’s speech). It is advisable – but not always realistic – to rehearse and time your speech in full before the moot.

E. Dealing with Judicial Questions It is not uncommon for the judge to ask questions when you are presenting your case. So you should always be prepared to be interrupted at any moment even in between mid-sentence. You should always try to answer questions from the judge as and when they are asked. Do not tell the judge that you will get to it later – this will usually annoy the judge. Depending on

the mooting rules that apply, answering questions may not be included in the speech timing, giving you plenty of chance to give the judge a full answer without worrying about the clock. Questions from the bench come in a variety of forms, an array of questions ranging from the straightforward to the difficult, from the whimsical to the subtle. You should not be unnerved or surprised by questions posed by the bench; instead you should welcome these questions as this is a sign that the judge or judges are interested in the case and try to answer the questions with the best of their abilities and knowledge. Eye contact is very important when explaining or replying to the particular judge’s questions, this shows confidence and surety in your answers, giving them the impression that you know what you are saying. Appear pleased when answering the court would thus give the impression that you welcome the question and are only too happy to be of help to the court. Note that answers should be clear, straightforward and to the point, limiting to 1-2 short, well thought-out sentences. Long-winded or evasive answers may be perceived as a weakness or deception. If the judge has defeated your argument, then admit it. You could say something like: “Yes. I am grateful to your Lordship.” “ Ya. Saya menghargainya Yang Arif”

“I am much obliged my lord.” “Terima Kasih Yang Arif”

However, if you feel the judge has misunderstood the point, then it is often worth persisting, by referring the judge again to the relevant authorities and restating your point. Some judges like to test whether the mooters can stick to their guns under pressure. Justify yourself by using words or phrases such as: “With all due respect, my lord…,” “Degan segala hormatnya Yang Arif”

“I can see the force of your Lordship’s argument, but it is nevertheless my respectful submission that …” “Saya jelas dengan alasan yang dikemukakan Yang Arif, walaubagaimanapun saya dengan rendah diri berhujah bahawa …”

If you cannot answer a question, say so. A response such as: “My Lord, I am unable to assist on that point, since I have not read the relevant authority” will often be sufficient, but be prepared for a judicial rebuke! If you do not understand the questions, politely ask the judge asking the question to repeat it or rephrase it such as: “I should be obliged if your Lordship could clarify that questions.” “ Saya amat berterima kasih/ menghargai sekiranya yang Arif dapat menerangkan/ menjelaskan persoalan tersebut.”

“I am having a little difficulty following your Lordship’s meaning.” “ Saya menghadapi kesukaran memahami maksud alasan Yang Arif / Saya kurang faham dengan maksud / alasan yang Arif

Responses to avoid: “With the greatest respect Your Honour, that is a very strange question.” “I’ll be getting to that Your Honour.” “Is that a statement or a question?” “Now where was I before I was interrupted?” Last but not least, you should never interrupt the judge when you are being asked questions, but let them interrupt you!

F. Citing Authorities When presenting cases to the court, arguments should be supported with relevant authorities. Methods on citing various authorities will be discussed below. 1) Law reports It is usual to cite the cases in full. Example for civil cases: Valliapa v Kersamal [1951] MLJ 117 “The (Federal Court) case of Valliapa and Kersamal, as reported in volume one of the Malaysian Law Journal for 1951 at page 117.” Example for criminal cases: R v Caldwell [1982] AC 341 “The (House of Lords) case of the Crown (or Regina) against Caldwell, as reported in the Appeal Cases reports for 1982 at page 341.” Note that in civil matters “v” is referred to as “and” whereas in criminal cases, it is referred to as “against”. Strictly never use Americanism “versus”.

It is polite to ask the judge if any clarification on the facts of the case is needed by them. This saves time and avoids boring the judges by repeating cases, which the judges are already familiar with. After giving the full citation, you should ask: “Are your lordship familiar with the facts of this case?” “Adakah Yang Arif biasa dengan /memerlukan/ memahami fakta kes ini?”

When referring to a particular line of passage in a case in your Bundle of Authorities, the best way of co...