Not What you THink

8/20/2019 Not What you THink

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MOOTING GUIDE

Compiled by Associate Professor Julia Davis


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Mooting Package

What is a m oot?

A moot is generally a hypothetical appeal case argued by law students before a bench of judges. In constitutional and administrative law, however, moots may actually involvecases heard at first instance (ie. in the High Court’s original jurisdiction) and may nottherefore involve an appeal from a court lower in the court hierarchy.

Every student will participate in moots at UniSA Law School. Successful participation inmoots is an indication that graduates have developed the ability to:

• Think on their feet,

• Work to set deadlines under pressure,• Work as a member of a team,

• Research the law in a timely and effective manner, and

• Construct written and oral legal arguments and defend them under questioning.

Normally, students are given a moot problem to argue and are divided into groups of four:two students appear for the Appellant and two appear for the Respondent. Students must

identify the issues and develop the arguments. They are given a limited time to researchthe law and to prepare their written submissions, which they must present to a panel of judges (usually academics and members of the legal profession) who will test thearguments by asking questions and engaging in a legal argument with the mooters. Thismeans that students must be familiar with both the substantive law governing the case andthe formalities used in oral legal argument. They must also develop skills in legal research.

There a re m any m ooting competitions h eld in Australia for law students, including:

• The ALSA moots

• The Philip C Jessup International Law moot

• The family law moot

• The constitutional law moot

• The international humanitarian law moot.

This p ackage co ntains 7 components:

• Preparing for a Moot: the basics

• Courtroom Etiquette and Sample Mooting Phrases

• Notes on Mooting and Sample Submissions


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• Advanced Legal Argument

• Coping with Questions

• Review Exercises

• Handling Nerves and Performance Anxiety – Presentation Tips

Preparing for the Moot: the basics

On the day o f the moot

On the day of the moot, the mooters should sit at the bar table facing the judges in thefollowing order, starting from the judges’ right:

Senior Counsel for the AppellantJunior Counsel for the Appellant

Senior Counsel for the RespondentJunior Counsel for the Respondent

Counsel will speak from the lectern in the same order as they sit.

During the moot

When the judges enter the court all mooters should rise and bow to the judges. Once the judges have seated themselves, the mooters may also sit down. The presiding judge willthen ask for the appearances, whereupon the Senior Counsel for the Appellant will rise andgive one of the variations on the usual formula:

‘If it please the Court, I am Ms Jane Jones and I appear with my learned friend MrSimon Smith for the Appellant in this matter.’

The Senior Counsel for the Respondent follows:

‘May it please the Court, my name is Dick Darcy and I appear with my learned friend

Mr Tom Jones on behalf of the Respondent.’

The judge will then turn to the Senior Counsel for the Appellant and invite them to openthe case. This involves giving a brief outline of the case that will be presented byexplaining:

• The nature of the case (‘Your Honours, this is a case of breach of contract.’);

• The facts giving rise to the dispute (be brief);

• The decision in the court below and the grounds for appeal; and

• A brief outline of the arguments and who will be making them.

(‘I will deal with the first two submissions on breach of contract and mylearned junior will cover the final two arguments on the issue of damages.’)


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Then, having outlined the case, the Senior Counsel will begin with their submissionsand the other counsel will continue. Then the Respondents will follow.

After the m oot

At the end of the moot, the judges may give their decision, or more often than not,will reserve their decision. Usually the judges will then give the mooters somefeedback on their performance and will prepare the marks to be distributed to themooters later.


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Notes o n the Assessment Criteria (ALSA)

Organisation of Presentation 10 Marks

Written Submissions 10 Marks

Development of Argument 25 Marks

Questions from the Bench 30 Marks

Speaking ability and delivery 25 Marks

Total 100 Marks

Organisation and Structure of the Presentation

• Introduction• Clarity of organisation• Conciseness• Comprehensiveness• Flexibility• Conclusion

Development of Arguments

• Supported by authorities and policy arguments• Applied the law to the facts of the problem question• Persuasiveness (maximises strong points, minimise weaknesses)• Allocation of time

Coping with Questions from the Bench

• Preparation: was the speaker adequately prepared to answer all questionswhich could reasonably be anticipated?

• Responsiveness and Conciseness• Composure• Perception• Focus: did the speaker lead the discussion back to the point, yield

when appropriate, adopt a flexible position when necessary?

Speaking Ability a nd Delivery

• Persuasiveness of the advocate’s delivery• Affirmative posture• Visual presentation (including eye contact )• Speaking technique (tone, modulation, inflection, volume)


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• Use of prepared materials


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Courtroom Etiquette an d Sample Mooting Phrases

Basic Rules

Bow (briefly) to the court when you enter and leave.Stand up when you speak to a judge.

Never interrupt a judge or speak over the judge: the second the judge begins to speak, youmust stop talking and remain silent until the judge finishes.

When making your appearances or when moving from one part of your submissions toanother part, you may say:

‘May it please the Court’

‘If it please the Court’

‘If your Honour pleases’

Never say ‘I think’ or ‘I feel’ – instead say ‘I submit’ or ‘I suggest’ or ‘I would argue’.

If you disagree with the judge, say: ‘With respect, your Honour…’ or ‘With greatrespect….’

Never say ‘I believe’ unless you are reporting on the actual state of your belief orknowledge – for example, if the judge asks whether there were any other witnesses, youcan answer ‘I believe that there were no other witnesses available, your Honour.’

Citing cases

Civil cases: Davis v Plater is read out as: Davis and Plater.

Criminal cases: R v Davis is read out as: The Crown against Davis.

Never pronounce ‘v’ as ‘vee’.

Never pronounce ‘R’ as ‘Aar’.

Never pronounce ‘R v’ as ‘Aar-vee’.

Addressing the judge a nd referring to judges

Address the judge as ‘Your Honour’ – or collectively as ‘Your Honours’.

Refer to other judges as:

‘His Honour, Justice X’

‘Her Honour, Justice Y’ or

‘Their Honours, Justices X, Y and Z.’

If referring to judges from the House of Lords:

‘His Lordship’

‘Her Ladyship’


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‘Lord Fraser of Tullybelton…’

Some co mmonly found abbreviations ar e:

CJ: Chief Justice ‘The Chief Justice, Sir Garfield Barwick…’

‘The Chief Justice, His Honour, Justice Gleeson …’

JA: Judge of Appeal, Justice of Appeal

P: President

LC: Lord Chancellor ‘Lord Hailsham, Lord Chancellor…’

VC: Vice Chancellor ‘Sir Robert Megarry, Vice Chancellor …’

B: Baron

CB: Chief Baron

LJ: Lord Justice ‘Lord Justice Lawton’

MR: Master of the Rolls ‘Lord Denning, Master of the Rolls…’

‘The Master of the Rolls, Sir Baliol Brett…’

Referring to other counsel

Refer to other counsel as ‘my learned friend’ – never as ‘my colleague’ or ‘my opponent’.

You may also refer to ‘My learned leader’ or ‘My learned junior’ or ‘Learned counsel forthe appellant/ respondent…..’

Practice the following useful phrases

If it please the Court, I will begin my first submission.

I apologise, your Honour, but I did not quite catch that question. Would your Honour beable to repeat it for me please?

I apologise, your Honour, but I am not sure that I follow that question fully. So that I mayrespond directly to your concern, could your Honour elaborate further?

I’m not sure whether that answers your question your Honour – is there any other issuethat arises from this matter that your Honour would like me to address before I move on?

Your Honour, that is something that my learned junior will be addressing, and I wouldrespectfully ask that she be allowed to respond to that question.

I’m not sure that I can answer that question any more fully, your Honour.

I’m not sure I can take the matter any further, your Honour.


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Your Honour, this is the highest that I can state my client’s case, and with yourpermission, I will move on.

With respect your Honour, I would submit that … (Used when disagreeing with the judge.)

With the greatest respect your Honour, that cannot be so … (used when you stronglydisagree with the judge.)

That concludes my submissions, your Honour.

If it please(s) the court, that concludes my submissions.

Further guidance on style

There are many other useful examples in the book on mooting by Christopher Kee, The Art of Argument: a guide to mooting , (Cambridge University Press, 2006).

You can also find transcripts of the submissions made by counsel in cases argued beforethe High Court of Australia at the AUSTLII website:

http://www.austlii.edu.auThese transcripts contain many excellent examples of oral legal advocacy by many ofAustralia’s top barristers.


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Notes on M ooting and Sample Submissions

The following notes may b e h elpful

Speed

• Speak clearly and relatively slowly.

• Do not rush through your submissions.

• When you are making complicated legal arguments you need to slow your speechdown a bit so that others can follow you. Nerves often make you gabble, so learnto slow down and use the pause. It also makes you look more thoughtful and yourarguments sound more authoritative and considered.

Style

• Speak in as normal a style as possible, but without being casual.

• Do not attempt an over-blown, artificial or fancy theatrical style: we are notlooking for Rumpole of the Bailey.

• Be expressive and natural, but also controlled, composed, helpful and respectful.

• Be persuasive (ie, communicate belief in your arguments) but guard against being

too aggressive or combative. We want to see calm, thoughtful, humancommunication: a willing and measured exchange of ideas and arguments. So,theatrics and over-emotional displays suggest that you are trying to ‘con’ the

judges, rather than communicate the real strengths of your arguments to them.

• Try to eliminate irritating fillers like ’um’ and ‘er’ from your speech.

Etiquette a nd Self Control

• Never speak when the judge is speaking or interrupt the judge. In the contestbetween judge and advocate, the judge wins. Show your respect for the judge bylistening intently to their question, and then pause, think, and respond.

• Control your natural urge to jump in too soon and speak over the top of the judge.A moot should develop into a conversation – BUT it is a stylised and ratherartificial kind of formal conversation: keep yourself under control and observe theetiquette.

• Learn the rules for addressing judges, referring to other mooters, citing cases, etc.Avoid saying ‘I think’ or ‘I feel’.Use the correct style:

I argue… I would argue….I submit … It is our /my submission that …I suggest … I would suggest …My response to that issue is …..


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Body Language and Eye Contact

• Keep your language, as well as your body under control. You can suggestconcentration, respect and engagement with the judges by the way you holdyourself and make good eye contact with the bench. Focus on the whole bench so

that you can ‘read’ their responses to your arguments.

• Do not slouch, slump or look down to your notes all the time. Avoid reading at allcosts – unless you are quoting a key passage from a case.

• Be very careful of fiddling with spectacles or pens: they are the mooter’s enemy –especially the click-top type of pens. Put the pen down before you start.

Be w illing to jump around in your submissions: you have to be exible.

• Sometimes a mooter is not allowed by the judges to start their submissions –instead they are asked a question right up front. This ‘hijacking’ technique is quitecommon. Pay attention to the arguments made during the other presentations sothat you can be ready with your own counter-arguments when necessary. Beingresponsive to the judge will make the moot go better – but this requires goodpreparation. You need well written notes and skeleton outlines of the arguments(and counter arguments) that are clear and easy to manage. You need to know yourmaterial well and have a clear understanding of the strengths and the weakness inyour arguments.

• Do not resist the judge, show resentment, or whinge and say ‘But I was going to

come to that later.’ Simply turn to that part of your submissions, answer the judge’s question and then turn the moot back to the most important point that youwant to make. You will score points for being responsive.

• Be aware that sometimes the judges will not want to hear one of your submissions.They may want to focus on only one part of your argument. You can try,respectfully, to convince the judge that the point is an important one – but if the

judge does not want to hear it you simply have to accept the fact and move to thepart of the argument that the judge wants to focus on. If you feel that the point isimportant you can assert yourself to some degree, but sometimes all you can do is

try to make your point – or repeat your views in the conclusion of your case.

What to do if you are p inned down by the judge:

• Part of being a good mooter is the ability to cope with a direct question on theweakest parts of your case. Most moots build in at least one weak area for eachside. You need to be aware of those weaker parts of your argument and you need tohave prepared something to say in advance for the moment when the judge finallydecides to press you on those parts. One suggestion is to follow this pattern:respond, confirm and respond again, yield (if necessary) to end the onslaught, andlead away from the issue as soon as you appear to have said all that can be said, eg:

1. If there is anything to say, turn to your prepared argument and say it, briefly .

2. If the judge presses you, try going into more depth (if you can).


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3. If you are completely backed into a corner and feel that the judge is out to nailyou, then it might be time to be frank and end it . Admit that ‘Perhaps this isnot the strongest part of your case’ and then find a way to lead the judge to thestronger parts of the submissions, eg by saying:

‘Thank you, your Honour, but I would submit that regardless of how yourHonours find on this particular point, the Appellant’s overall argument is notfatally weakened because the most important issue is ….. (here try to get back to the part where you feel most comfortable!)

4. Note: the judges will not let you avoid the issue completely, so the ‘lead back’technique works only once you have appeared to have honestly tried to dealwith the arguments on their merits.

5. Remember, there are different kinds of moots: competition moots and mootsthat form part of your assessment in your law courses. Assessable moots are a

co-operative exercise – if you establish a friendly relationship with your‘opponents’ you will all be able to help each other identify the strengths andweaknesses of your opposing arguments and therefore you will all be betterprepared to deal with the common adversary – the judges! On the other hand, acompetition moot is not a co-operative exercise – and there is no real interestin co-operation with the other side – it is two against two.

Keith Evans: The Golden Rules of Advocacy (OUP, 1993)

Keith Evans gives a helpful example of how to cover a gap in concentration and whatto do when your mind goes blank and you lose your continuity during an oral legalargument.

How to maintain your continuity [39-40]

When you have a pause, when indeed a pause is forced upon you because your mind goesblank – as happens to all of us – try to make even that pause part of the entertainment. Itcan be done and it’s not difficult. … We all know the fright of having our minds goblank on us. For the inexperienced advocate it’s a real fear. But it needn’t be. What thetechnique involves is this, and it works in three stages .

When you suddenly realise, with alarm, that your mind has gone blank:

Step one is to send a message to your stomach and command it to relax. This actuallydoes control the flow of adrenalin and with it, the dry mouth and the raised heartbeat.

Step two is to pick up any piece of paper with writing, type or printing on it, look intentlyat a blank margin, and silently count to three.

Step three is to glance up at your judge and say ‘If your Lordship would give me a

moment’, and then look straight back at the piece of paper.

You can have 10 seconds at this point, 20 seconds of total silence, if you need them togather your thoughts. Nobody is going to mind, Nobody is going to feel that you haveinterrupted the continuity or that you have had a breakdown on transmission. This is


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because you have invested that pause with an apparent significance of its own. You won’tneed 20 seconds, Your mind will clear much quicker than that, and on you go.


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If you lose your way

If you lose your way in your presentation or if your sentences get longer and longer – donot get flustered or keep blundering on. The secret if you lose your way is to ‘stop dead inyour tracks’. Say something like ‘I’m not putting this clearly. Let me start again.’ Nobody

minds. If you’ve got lost you can be sure they have, and they’ll be grateful to you fortaking the load off them as well as yourself. [62]

Keep it simple.

Know your audibility.Vary your pace and tone.Be aware of timing and use the power of the pause.Allow silence to work for you, and don’t ignore the dramatic impact that a pause cancreate.

Some helpful webpages

MootingNet, a web resource for mooters in England and Wales.http://www.mootingnet.org.uk/

The University of Cambridge Guide to Mooting can be found here:http://www.cambridgemooting.co.uk/

Video Guide to mooting can be found athttp://www.lawbore.net/wrapfile.php?page=5

There are many mooting manuals and guides to be found at the web pages of other lawschools.

A guide t o further r eading

There is a considerable amount of literature on moot advocacy and oral communicationskills, most of which has been very helpful and given real guidance in putting thesematerials together. We have particularly relied on the following texts, and recommendthem to students requiring further direction and assistance:

• J Curthoys & C Kendall, Advocacy: An Introduction (Lexis Nexis,Butterworths 2006) (particularly Chapter 5)

• C Kee, The Art of Argument: A Guide to Mooting (Cambridge UniversityPress, 2006)

• T Gygar and A Cassimatis, Mooting Manual (Butterworths Skills Series1997) (particularly Chapter 6)

• R Krever, Mastering Law Studies and Law Exam Techniques 6 th Ed (LexisNexis, Butterworths, 2006) (particularly Chapter 8)


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• S Williams and J Walker, A Practical Guide to Mooting (EmondMongomely Publications Ltd 1995)

• B Wolski, Legal Skills – A Practical Guide for Students (Law Book Co,2006) (particularly Chapter 8)

• J Snape and G Watt, The Cavendish Guide to Mooting (2 nd Ed)(Cavendish, 2000)

• K Evans, The Golden Rules of Advocacy , (OUP, 1993)

• R Crawford, The Persuasion Edge , (Professional Education Systems,1989)

• L Stuesser, An Introduction to Advocacy , (Law Book Co, 1993)

• Hyams, Campbell & Evans, Practical Legal Skills , (OUP 2007)

• H Selby, Winning in Court: An Introduction to Advocacy , (OUP, 2000,2004)

• M Hyam, Advocacy Skills , (OUP, 1999)

• The Inns of Court, Advocacy , (OUP, 2005)

• Williams G, Learning the Law , (Sweet & Maxwell, London, variouseditions)

Sample su bmissions can be found on the following pages.

NOTE: Written submissions do not form part of the assessment in either AustralianFederal Constitutional Law or Administrative Law.


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IN THE FULL COURT OF THE SUPREME COURT OF WESTERN AUSTRALIAMOOT 1 of 2005

BETWEEN

P ! DI!T"I#UTO"! $AU!T"A%IA& PT' %TD Appella(t

and

%A"C) O"IGINA% OCCUPATIONA% TEC)NO%OG' %IMITED "espo(de(t

APPELLANT’S OUTLINE OF SUBMISSIONS

$A& !UMMA"' O* T)E *ACT!

1. The Re !onden" #an$fa%"$&ed a hand'he(d %o#!$"e&) ed d)a&* %a((ed "he +e(!h)% o&,an) e& )n "he Un)"ed S"a"e and "he A!!e((an" -e,an ne,o")a")on "o d) "&)-$"e "he !&od$%" )n

A$ "&a()a and Ne /ea(and.

2. In $ne 2000 "he Re !onden" &e!&e en"ed "o "he A!!e((an" "ha" US Man$fa%"$&e a "he-ed&o% 3 of "he %o#!an*’ $%%e )"h "he +e(!h)% o&,an) e&3 and "ha" "he Re !onden"ha!!)(* &e!(a%ed an* defe%")4e +e(!h)% o&,an) e& &e"$&ned "o )"3.

. In A$,$ " 20006 "he !a&")e %on%($ded an a,&ee#en" $nde& h)%h "he A!!e((an" $nde&"oo "od) "&)-$"e "he +e(!h)% o&,an) e& )n A$ "&a()a and Ne /ea(and.

7. Ho e4e&6 )n ea&(* 2002 "he Re !onden" %on"&a%"ed )"h a Ne /ea(and %o#!an* "o#an$fa%"$&e "he !&od$%" $nde& ()%en e and $!!(* "he A!!e((an" a Ne /ea(and #ade!&od$%".

5. The Ne /ea(and !&od$%" a ),n)f)%an"(* (e &e()a-(e "han "he o&),)na( !&od$%" and "he A!!e((an" de#anded "ha" "he Re !onden" $!!(* on(* "he US'#an$fa%"$&ed !&od$%" and,)4e %&ed)" fo& "he o&,an) e& &e"$&ned )"h)n a&&an"*.

8. The Re !onden" $- e9$en"(* "e)na"ed "he a,&ee#en" $nde& C(a$ e 1:.

:. The A!!e((an" -&o$,h" an a%")on )n "he S$!&e#e Co$&" of We "e&n A$ "&a()a a((e,)n, "eho$(d -e )#!()ed )n"o "he %on"&a%"6 -$" "he a%")on a d) #) ed -* +$n(o! and ) no

a!!ea(ed "o "he F$(( Co$&".

$#& APPE%%ANT+! !U#MI!!ION!

1. Pa&o( e4)den%e of "he $ne 2000 !&e'%on"&a%"$a( d) %$ )on ) ad#) )-(e fo& "he !$&!o e

of )(($#)na")n, "he $&&o$nd)n, %)&%$# "an%e of "he %on"&a%".

2. A "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" "he !&od$%" $!!()ed $nde& "he d) "&)-$")ona,&ee#en" o$(d -e US'#an$fa%"$&ed.

. A "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" "he A!!e((an" %o$(d &e"$&n an* !&od$%" fo$nd"o -e defe%")4e )"h)n a&&an"* "o "he Re !onden" fo& f$(( %&ed)".

T)E A#O,E !U#MI!!ION! A"E !UPPO"TED A! *O%%O-!.

!U#MI!!ION ONE

1. Pa&o( e4)den%e of "he $ne 2000 !&e'%on"&a%"$a( d) %$ )on ) ad#) )-(e fo& "he !$&!o eof )(($#)na")n, "he $&&o$nd)n, %)&%$# "an%e of "he %on"&a%".

1.1 E;"&)n )% e4)den%e of !&e'%on"&a%"$a( d) %$ )on ) ad#) )-(e fo& "he !$&!o e of)(($#)na")n, "he o-


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Codelfa Construction Pty Ltd v State Rail Authority of NSW =1>?2@ 17> CLR : a" 52!e& Ma on .Spunwill Pty Ltd v BAB Pty Ltd =1>>7@ 8 NSWLR 2>0 a" 2>>.

1.2 Th$ 6 e4)den%e "ha" "he !a&")e ha4e %on"&a%"ed on "he -a ) of a %o##on a $#!")on -$"ha4e no" )n%($ded a !&o4) )on "o "he a#e effe%" ) ad#) )-(e.

Codelfa Construction Pty Ltd v State Rail Authority of NSW =1>?2@ 17> CLR : a" 57!e& Ma on .

1. In "he )n "an" %a e6 e4)den%e "ha" "he !a&")e %on"&a%"ed on "he -a ) of a %o##ona $#!")on "ha" "he !&od$%" &efe&&ed "o )n "he a,&ee#en" a "he US'#an$fa%"$&ed !&od$%") ad#) )-(e.

1.7 F$&"he&6 e4)den%e "ha" "he !a&")e %on"&a%"ed on "he -a ) of a %o##on a $#!")on "ha" "heRe !onden" o$(d &e!(a%e defe%")4e !&od$%" )"h)n a&&an"* ) a( o ad#) )-(e.

!U#MI!!ION T-O

2. A "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" "he !&od$%" $!!()ed $nde& "he d) "&)-$")ona,&ee#en" o$(d -e "he US'#an$fa%"$&ed !&od$%".

2.1 The )#!()%a")on of "e ad ho% )n"o a &)""en a,&ee#en" #$ " #ee" "he f)4e &e9$)&e#en"(a)d do n )n BP Refinery (Westernport) Pty Ltd v Hastin s Shire Council =1>::@ 1?0 CLR288

2.1.1 I" #$ " -e &ea ona-(e and e9$)"a-(e.

2.1.2 I" #$ " -e ne%e a&* "o ,)4e -$ )ne eff)%a%* "o "he %on"&a%" o "ha" no "e )(( -e)#!()ed )f "he %on"&a%" ) effe%")4e )"ho$" )".

2.1. I" #$ " -e o o-4)o$ "ha" )" ,oe )"ho$" a*)n,.

2.1.7 I" #$ " -e %a!a-(e of %(ea& e;!&e )on.

2.1.5 I" #$ " no" %on"&ad)%" an* e;!&e "e.

BP Refinery (Westernport) Pty Ltd v Hastin s Shire Council =1>::@ CLR 288 a" 2? !e&Lo&d S)#on of (a) da(e.Codelfa Constructions Pty Ltd v State Rail Authority of NSW =1>?2@ 17> CLR : a" 7:!e& Ma on .

2.2 A "e &e9$)&)n, "ha" "he !&od$%" $!!()ed $nde& "he d) "&)-$")on a,&ee#en" -e #an$fa%"$&ed)n "he Un)"ed S"a"e #ee" "he e &e9$)&e#en" .

2.2.1 The "e o!e&a"e &ea ona-(* and e9$)"a-(* -e" een "he !a&")e a "he* had en"e&ed"he %on"&a%" on "he -a ) "ha" "he A!!e((an" o$(d d) "&)-$"e "he US'#an$fa%"$&ed!&od$%".

2.2.2 The "e ) ne%e a&* "o #a e "he a,&ee#en" effe%")4e )n a -$ )ne en e and!&e4en" "he Re !onden" f&o# a%")n, "o $nde)ne "he $nde& "and)n, of "he !a&")e -*e;!(o)")n, a ,a! )n "he %on"&a%".

Renard Constructions (!") Pty Ltd v !inister for Pu#lic Wor$s =1>>2@ 28 NSWLR 2 7a" 25:'25? !e& P&)e "(* A.

2.2. The "e ) o o-4)o$ )" ,oe )"ho$" a*)n,. Had "he off)%)o$ -* "ande&3

$,,e "ed "he !a&")e )n%($de $%h a "e "he* o$(d ha4e d) #) ed )" a o-4)o$"ha" "he !&od$%" &efe&&ed "o )n "he a,&ee#en" a "he US !&od$%" )n%e "h) a "heon(* !&od$%" )n e;) "en%e a" "ha" ")#e.

2.2.7 The "e ) %a!a-(e of %(ea& e;!&e )on.


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2.2.5 The "e doe no" %on"&ad)%" an* e;!&e "e )n "he &)""en a,&ee#en"6and6 )n !a&")%$(a&6 ) %on ) "en" )"h C(a$ e 15.

2. A "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" "he !&od$%" $!!()ed $nde& "he d) "&)-$")ona,&ee#en" o$(d -e #an$fa%"$&ed )n "he Un)"ed S"a"e .

!U#MI!!ION T)"EE

. A "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" "he A!!e((an" %o$(d &e"$&n an* !&od$%" fo$nd"o -e defe%")4e )"h)n a&&an"* "o "he Re !onden" fo& f$(( %&ed)".

%&' Th) "e #$ " a( o a") f* "he BP Refinery (Westernport) Pty Ltd v Hastin s Shire Council=1>::@ 1?0 CLR 288 "e " fo& "he )#!()%a")on of "e ad ho% )n"o a &)""en a,&ee#en".

.2 The !$&!o&"ed "e #ee" "he f)4e &e9$)&e#en" en$n%)a"ed )n BP Refinery (Westernport)Pty Ltd v Hastin s Shire Council =1>::@ 1?0 CLR 288.

.2.1 The "e o!e&a"e &ea ona-(* and e9$)"a-(* -e" een "he !a&")e a "he* had en"e&ed"he %on"&a%" on "he -a ) "ha" "he Re !onden" "oo f$(( &e !on )-)()"* fo& "he&e!(a%e#en" of defe%")4e !&od$%" .

.2.2 The "e ) ne%e a&* "o #a e "he a,&ee#en" effe%")4e )n a -$ )ne en e. RenardConstructions (!") Pty Ltd v !inister for Pu#lic Wor$s =1>>2@ 28 NSWLR 2 7 a"25:'25? !e& P&)e "(* A.

.2. The "e ) o o-4)o$ )" ,oe )"ho$" a*)n, and )" a )#!(* a $#ed -* "he!a&")e "ha" "he Re !onden" o$(d &e!(a%e defe%")4e !&od$%" )"h)n a&&an"*.

.2.7 The "e ) %a!a-(e of %(ea& e;!&e )on.

.2.5 The "e doe no" %on"&ad)%" an* e;!&e "e )n "he &)""en a,&ee#en" a "he&e )no "e )n "he &)""en a,&ee#en" "ha" !$&!o&" "o dea( )"h "he 9$e ")on.

. Th$ 6 a "e ho$(d -e )#!()ed )n"o "he %on"&a%" "ha" defe%")4e !&od$%" fo$nd "o -e defe%")4e)"h)n a&&an"* %o$(d -e &e"$&ned -* "he A!!e((an" "o "he Re !onden" fo& a f$(( %&ed)".

On "he -a ) of "he a-o4e $-#) )on 6 %o$n e( fo& "he A!!e((an" &e !e%"f$((* &e9$e " an O&de&of "he Co$&" $!ho(d)n, "he f)& " ,&o$nd of a!!ea(6 and &e4e& )n, "he o&de& of "he "&)a(


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IN THE HIGH COURT OF AUSTRALIA

HOBART OFFICE OF THE REGISTRY

BETWEEN:

Julia Davis Construction Pty Ltd Appellant

AND

Ken Mackie Respondent

SUBMISSIONS FOR THE APPELLANT (SENIOR/JUNIOR) insert name

Background

• The first paragraph should summarise the nature of the dispute.In four or five lines explain the essence of the dispute between the parties.

• The second paragraph should give a brief history of the dispute.In four or five lines explain how the case reached this court. Decision at first instanceand Court of Appeal (as relevant)

Grounds of Appeal

• State your grounds of appeal and succinctly explain your reasons. If you have acomplicated argument, then list and explain the steps and sub-steps in your reasoningBeneath each ground, list your case authorities. You may also wish to argue in thealternative. See examples of the submissions below.

1. The contract was made on the terms of Julia Davis Construction’s standard contract.Stern J and the Court of Appeal erred in applying Nicol v Gogarty [2003] UKHL 53,[2003] 4 All ER 969:1.1 Nicol does not lay down a general exclusionary rule.1.2 The test in Nicol should be read in light of Chalmers v Blackwood [2002] 1

QdR 474.1.3 The contract in issue would satisfy the test when correctly understood.

2. Alternatively, if the argument above on the authorities is incorrect, it is submitted thatthe Court should not follow Nicol as:

2.1 As explained by Warner v Henning [2003] QDC 151 (16 June 2003), asignificant lacuna would exist if model contracts were better insulated fromthe 1977 Act.

2.2 It would be inconsistent with the aims and purposes of the statute ExemptionClauses Act (Tas).

AUTHORITIES

Nicol v Gogarty [2003] UKHL 53, [2003] 4 All ER 969Chalmers v Blackwood [2002] 1 QdR 474


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Warner v Henning [2003] QDC 151 (16 June 2003)


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IN THE QUEENSLAND COURT OF APPEAL

BETWEEN JENKINS CONSTRUCTION PTY LTD(Appellant)

AND IMP SOCIETY(Respondent)

SYNOPSIS OF SUBMISSIONS OF THE APPELLANT

(1) Speedy J erred in law by finding that Jenkins Constructions Pty Ltd had engagedin misleading and deceptive conduct under s 52 of the Trade Practices Act.

(2) Jenkins Constructions Pty Ltd owed no duty to IMP Society as subsequentpurchasers of a commercial building.

THE ABOVE SUBMISSIONS ARE SUPPORTED AS FOLLOWS:

Submission 11.1 The actions (i.e. conduct) during the contract negotiations between Kimbob PtyLtd and IMP involving the letter of 4 June amounted to a representation by Kimbob toIMP. Since there was no representation to IMP by Jenkins, there could be no conductwhich amounts to a breach of s 52:

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR paragraph 41-043 Robt Jones (363 Adelaide Street) Pty Ltd v First Abbott Corp Pty Ltd (1997) 14BCL 282T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68

1.2 In the alternative, any representation made by Jenkins to IMP was made underduress and, accordingly, liability for any aspect thereof which may be regarded asmisleading or deceptive should not fall on it.

1.3 In the third alternative, any representation by Jenkins to Kimbob was notmisleading or deceptive, and furthermore was not the cause of its loss:

Yorke v Lucas (1985) 158 CLR 661Fraser v NRMA Holdings Ltd (1995) 55 FCR 452

Myers v Transpacific Pastoral Co Pty Ltd (1986) ATPR paragraph 40-673 Elder s Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193Parkview (Keppell) Pty Ltd v Mytarc Pty Ltd (1984) 3 FCR 186

Submission 22.1 No liability will arise for the builder of a commercial building, with regard to asubsequent purchaser.Bryan v Maloney (1995) 182 CLR 609

Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 Zumpano & Anor v Montagnese & Anor (1997) Aust Torts Reports 81-406.The Council of the Municipality of Woollahra v Sved & Ors (1996) Aust TortsReports 81-398


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2.2 The High Court expressly stated that the nature of the property involved, thatbeing that it was a house, was an important consideration in concluding that therelevant relationship of proximity existed between the builder and the subsequentowner.

Bryan v Maloney (1995) 182 CLR 609Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236

2.3 If a defect was or should have been discovered by the subsequent purchaser, thesubsequent purchaser will have no claim against the builder. Any reliance on theadequacy of design and construction must be reasonable.

Bryan v Maloney (1995) 182 CLR 609

On the basis of the above submission, counsel for the appellant respectfully requeststhat the decision of Speedy J below be overturned, plus costs.

DATED This 13th day of June 2001_______________Jessica JonesSenior Counsel for the Appellant_______________Bruce BannerJunior Counsel for the Appellant

This sample submission was taken from the University of Queensland Moot Court

bench Mooting Manual, found at:www.law.uq.edu.au/mootingatuq/ resources/UQMCBMootingManual.pdf


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Advanced Legal Argument 1

Common Patterns of Legal ArgumentThere are many different kinds of arguments and patterns of legal reasoning, each of whichtends to serve different goals.

1. Arguments based on precedent promote stability and certainty in the law.

2. Arguments based on principle allow the law to pursue sound moral goals and toachieve justice.

3. Arguments based on policy analysis allow the law to adjust to changing conditionsand to achieve useful and desirable social, economic or political ends.

4. Arguments based on legal texts (eg the Constitution, statutes) promote objectivity.

5. Arguments based on the intention of those who created the texts promote respect forthe will of the people’s democratically elected representatives, ie parliamentarysovereignty.

6. Arguments based on custom , tradition or longstanding practice accord withcommunity expectations and promote social cohesiveness.

These values, aims, principles and policies often point in different directions, and when thisoccurs, judges must weigh them in the balance and choose one over the other. Your job as anadvocate is to:

1. Identify the range of possible arguments;

2. Develop the argument that best advances your client’s position; and

3. Anticipate and attempt to destroy the counter-arguments that will be putforward by the other side.

Common conicts b etween different types o f legal reasoning

Text vs intention

Precedent vs principle

Precedent vs policy

Text vs policy or principle

Text vs precedent

An explanation of the different kinds of arguments and the different methods of counteringthose arguments follows.

1 Wilson Huhn suggests that there are five kinds of legal argument, The Five Types of Legal Argument (Carolina Academic Press, Durham North Carolina, 2002) and identifies at 16 thedifferent types of values that each tends to serve. Many of the examples and points given in thismodule are adapted from Huhn’s model.


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Arguments based on P recedent

The n ature o f these ar guments

These arguments are based on drawing on an analogy between the precedent case and thecurrent dispute by identifying relevant similarities between them, and suggesting that therule from the previous precedent case should be applied to the current case in the interestsof consistency. An argument based on precedent involves a three step process:

1. Identify the relevant similarities between the cases.

2. Identify the relevant rule from the precedent case.

3. Apply the rule to the facts of the current case.

Arguments based on precedent promote the value of consistency, stability and certainty indecision-making. They are based on the maxim that we should treat like cases alike anddifferent cases differently (unless there is some morally relevant difference between thecases).

These ar guments can b e attacked by:

• Disputing the grounds of similarity between the cases:

The case may be distinguishable on the facts.

The case may be distinguishable at a deeper level, eg on the basis of adifferent set of goals, purposes or policies of the law.

If the precedent case is based on a statutory rule, the case may bedistinguished on the grounds that the wording of the statutes aresignificantly different.

• Disputing the rule’s application to the facts of the current case.

• Disputing the relevance of the rule extracted from the precedent because:

The legal proposition was obiter, and not ratio.

The legal proposition was stated too widely and should be restricted to its

facts.The authority has been over-ruled by a later case.

There is another, competing, and preferable line of authority (give reasons*why it is preferable).

There was a strong dissent, which should be preferred (give reasons*).

The rule is not binding on the court (eg, is from another jurisdiction).

The case was decided per incuriam (ie, without the court’s attention having

been drawn to the relevant authorities).The case was wrongly decided and should be overruled (give reasons*).

*These reasons will usually be based on principles and policy, see below.


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Arguments ba sed on Principle


Arguments based on principle allow the law to pursue sound moral goals and to achieve justice. A principle is a broad formulation of reasons or generalisations, often moral innature, which underlie and justify particular rules. The famous neighbour principle in

Donoghue v Stevenson [1932] AC 562 gave rise to a rule about manufacturers liability.

The ‘Neighbour Principle’ (at 580):You must take reasonable care to avoid acts or omissions which you canreasonably foresee would be likely to injure your neighbour.

The Rule (at 599):A manufacturer of products, which he sells in such form as to show that he intendsthem to reach their ultimate destination in the form in which they left him … andwith knowledge that the absence of reasonable care … will result in an injury tothe consumer’s life or property, owes a duty to the consumer to take thatreasonable care.

Arguments based on principle seek out the underlying moral purpose or principledfoundation of a particular area of law from the cases and use the general principle tosuggest the proper formulation of the relevant rule. These kinds of arguments promote themoral values of the community.

They can be countered by:

• Identifying a conflicting principle and arguing that it should be givengreater weight (remember, just like rules of statutory interpretation, principlesoften come in competing pairs).

• Agreeing that the general principle holds good, but arguing that anexception should be made in the current case for other reasons, eg policy, seebelow.

Arguments b ased on Policy Analysis


Arguments based on policy point towards the future beneficial social, economic or politicalconsequences that the proposed version of the law would secure for the community. Thelabel of ‘public policy’ is most often used to refer to arguments that point to strictly

political or economic consequences, however, the general term ‘policy’ is a confusing onethat can also refer to the beneficial social consequences of a particular formulation of alegal rule. An example of an economically based policy argument is the classic floodgatesargument claiming that the courts might be engulfed in a flood of costly litigation if aparticular rule is adopted. The distinction between arguments based on principle and policy

can sometimes become very blurred. A policy based argument contains two steps:1. Identify the factual claim: what consequences will flow from the proposed

rule?


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2. Identify the value based aspect of the claim by explaining why thisconsequence is a good one: what beneficial social or economic purpose does theproposed rule secure?

Arguments based on policy allow the law to adjust to changing conditions and to achieveuseful and desirable social, economic or political ends.


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These arguments can b e countered by:

• Attacking the accuracy of the other side’s factual claim by presenting adifferent set of facts.

• Suggesting that the factual claim is so uncertain that the court does not havethe resources to investigate it and that such a complicated matter as this one isbetter left to parliament.

• Arguing that the proposed rule would not serve the particular purpose.

• Arguing that there is a competing principle or policy that should be givenmore weight.

• Arguing that the case law in the area suggests that the courts haveconsistently given little weight to the particular policy factor.

• Suggesting that the policy is an impermissible and illegitimate intrusion intothe role of parliament.

Arguments based on a Te xt


Arguments based on the actual words of legal texts (eg, the Constitution, statutes,regulations, wills, contracts, etc ) may focus on:

• The plain meaning of the words in the relevant part of the text.

• The methods of statutory interpretation.

• Using one part of the text to help you to interpret another part (eg, lookingfor similar or dissimilar terms in other parts of the document).

These kinds of arguments promote the value of objectivity.

Arguments b ased on the words of a text can be countered by:

• Identifying some ambiguity in the wording of the text.

• Suggesting that the meaning put forward by the other side is wrong – andarguing that the words have a different meaning.

• Suggesting that the rule of statutory interpretation put forward by the otherside either does not apply (perhaps because the threshold test is not met) or iscontradicted by a different rule of statutory interpretation (they tend to come incontradictory pairs).

Arguments b ased o n Intent



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Arguments based on the intentions of those who created a legal text (eg, the Constitution,statutes, regulations, wills, contracts, etc) may focus on:

• The preamble to the statute, its long title, or any parts of the document thatspell out the intention, object or purpose of the statute.

• Previous versions of the statute – or, if the statute was passed to remedysome perceived defect in the law, the state of the pre-existing common law.

• The history of the text, including committee reports, the second readingspeech, etc.

These kinds of arguments on the intent behind a statute promote respect for parliamentarysovereignty. In the cases of contracts or wills, they promote freedom of choice and thevalue of personal autonomy.

Arguments b ased on intent can b e attacked o n two grounds:

• There is not enough evidence of the intent of the original framers.

• The framers of the law or Constitution did not anticipate current conditions.

Arguments based on C ustom


Arguments based on custom, tradition or longstanding practice promote socialcohesiveness and conform to the expectations of community members.

They ca n be co untered by arguing that :

• There is no such tradition.

• There was previously a conflicting tradition that should also be recognised.

• Tradition is a living thing and the old tradition has changed in recent times.

Further Reading on Legal Argument

Krever R, Mastering Law Studies and Law Exam Techniques , 6 th ed, (Butterworths,Sydney, 2006), Chapter 3 at 13-22.

Brogan M & Spencer D, Surviving Law School , (Oxford University Press, Melbourne,2004), Extracts at 138-143, 169-174.

Cook C et al, Laying Down the Law , (Lexis-Nexis Butterworths, Sydney, 2006) 136-150.

Cross R & Harris JW, Precedent in English Law , (Clarendon Press, Oxford, 1991).

Enright C, Legal Technique (Federation Press, Sydney, 2002).Enright C, Studying Law , (Branxton Press, Acton, 1991).


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Huhn W, The Five Types of Legal Argument (Carolina Academic Press, Durham NorthCarolina, 2002)

McHugh M, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37


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Coping with Questions

Why do judges ask q uestions?

There are four main reasons why judges in moots and judges in appeal cases askquestions of an advocate:

(a) To clear up confusion

The questions are designed to give the questioner better particulars of thearguments that are presented.

(b) To elucidate t he a rguments

Questions give the mooter an opportunity to further elucidate their arguments andto reveal the structure of their arguments more precisely.

(c) To test the p resenter’s k nowledge a nd understanding of their arguments

Questions can be used to test the mooter’s knowledge and understanding bydirecting the presenter to consider the implications of the argument, eg by use ofanalogy, other counter-arguments, authorities not mentioned in the presentation,etc.

(d) To elicit an opinion or to commit the p resenter t o a p osition

Questions can be used to encourage the mooter to present an opinion or an overallcritical assessment of the issues raised by the topic. In a moot, judges often press amooter to formally commit to a precise position.

Types of questions

Questions are of three main types: factual, legal and ‘big picture’ questions.

Factual questions

These are simple and, whilst requiring more than a yes/no answer, are used mainlyin situations (a) and (b) above. These questions are designed to clear up anyconfusion that may have crept into the presentation, to bring the presentation of theargument back on track if it has strayed, and to help reveal the arguments that arebeing made.

Legal questions

These questions are more critical, and they are used in situations (c) and (d) above.

They are specifically designed to test the arguments on the critical legal issuesinvolved in the moot.

‘Big picture’ questions


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These questions are also used in situations (c) and (d) above. They are specificallydevised to assess the mooter’s comprehensive knowledge of the area, and theirability to bring a critical analysis to that area. They are also used to test themooter’s overall picture of the issues arising out of the topic.It is important when mooting or when presenting a case to a judge or jury, for theadvocate to develop a strong ‘case picture’ which encapsulates the key view of theissues and the reasons why a matter should be determined in a particular way.These ‘big picture’ or ‘overview’ questions are designed to bring out that aspect oforal advocacy, so it is important that mooters focus not only on the finer details oftheir topic, but also be able to see the wider issues and context of their case and beable to explain its significance.

How to prepare for questions

Remember that the overall object is to assess your knowledge of the legal area selectedand your ability to concisely but comprehensively explain the issues that have arisen fromthe moot in a lucid and critical manner. Questioning is as much a part of the process asthe presentation and the legal reasoning skills, and should not be regarded simply as an‘add-on’ at the end – it is an integral part of the exercise. So, as a result:

• Thorough preparation and consequent familiarity with the subject matter isvery important.

• You should consider in advance the likely questions which the judge will ask.Remember that in a 20 minute presentation the questioning could be extensive,

so think of likely areas of contention in the subject matter that should beaddressed.

• Think also of the overall ‘big picture’ questions and be prepared to have anopinion which offers a critical perspective on the issues.

• Prepare an ‘argument map’ which lists and correlates any points / argumentsthat may arise from the topic with the counter-points and counter-arguments.This extra overview document prepared in advance (one page is preferable)can sit next to you on the table and can contain any key phrases and dot pointsthat will trigger your answers to any of the likely questions.

Overall, however, thorough and detailed preparation is the key – and there are twoways to prepare yourself for answering questions. The first is to become the master ofyour topic, to anticipate the likely questions and to prepare answers in advance. Thesecond is to get some practice answering questions so that you become accustomed tobeing put on the spot. So, you should go through your presentation with a friend whocan fire a few questions at you to help you practise this skill.


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What to do on the d ay o f the m oot: coping with questions

Listen

Effective listening skills can be affected by nerves, so read the advice on HandlingNerves in this packet. However, it cannot be emphasised highly enough that listeningskills are all important in the questioning process. Careful listening should enable thepresenter to know precisely what is required and shows respect for the question and thequestioner. Respectful listening is a crucial skill in mooting (and in job interviews), soonce the judge begins to speak, you should immediately stop speaking and listencarefully. Do not rush into an answer or speak over the judge – wait until they havefinished asking the question and then think before you respond.

Ask for help if you do not hear the q uestion

Following on from the advice above, if you do not properly understand the questionasked by your moot judge say so and ask them to repeat the question. Do not guess –simply ask the judge to repeat the question. He or she will not be offended at all by this –after all it is the proper answer that they are interested in above all and that can be givenonly if you have heard the question.

In a moot, you would say:

‘I apologise, your Honour, but I did not quite catch that question. Would yourHonour be able to repeat it for me please?’

Ask again if you do not understand the q uestion

If you have listened carefully and have properly heard the question, but still you do notunderstand the question – ask again, respectfully, for clarification – or explain yourunderstanding of the question and ask if you have it right – before launching into ananswer. The judge may provide help here and re-state the question in a different way oroffer some other clarification. This should give you the opportunity to respondeffectively. If, after you have made an attempt to answer the question, you are not surethat you know the answer, you may have to admit that you are not sure whether you can

assist the moot judge any further. If you reach this position, then a candid admission isappropriate.

In a moot, you would say:

‘I apologise, your Honour, but I am not sure that I follow that question fully. Sothat I may respond directly to your concern, could your Honour elaborate further?’

‘I’m not sure whether that answers your question your Honour – is there any otherissue that arises from this matter that your Honour would like me to addressbefore I move on?’

‘I’m not sure that I can answer that question any more fully your Honour.’‘Your Honour, this is the highest that I can state my client’s case, and with yourpermission, I will move on.’


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Take your time

There is no need to rush into an answer straight away. A controlled pause makes you look thoughtful and respectful and can be used as you take your time to consider theimplications of the question. However, do not be tempted to fill the pause with nervous

body language or nervous ‘ums’ or ‘ers’. Do not be afraid of the silence. Simply pause,think and then give your answer. If you need more time, take a sip of water as well.

Do NOT prevaricate

Do not prevaricate or try to put off answering the question. Answer it immediately, evenif it interrupts the flow of your prepared argument. Do not say ‘I will deal with that later’or you will look combative, unhelpful and disrespectful. In a moot the judge may use aquestion to bring you back to the most important issues if you have strayed from thetopic, so follow the lead and give the answer straight away. Sometimes, a judge may usea question to see if you are flexible enough to jump around in your submissions, so youneed to display that skill with grace and good humour. Furthermore, it is important whenmooting to allow the questioner to control the direction of the conversation – after all,you are trying to persuade them of your case, so you need to let them direct you to anyareas that they may need your help with so that you can dispel their doubts and assistthem to see things your way.

The moral of the story is that you should be flexible enough in your arguments to addressany issue immediately when asked, even if you had intended to address that very issuelater in your presentation. This is where the argument map (as opposed to a script) comesin handy – just look down, see what you have prepared in advance, and say it.

Do not fake an swers o r avoid answering

Do not pretend to answer the question (eg, by a simple “Yes”) and immediately move on.This may work for politicians trying to avoid a tricky question in a TV interview, but inadvocacy where you must persuade the judge of the rightness of your cause, you have torespect the question and give a complete and convincing answer. If you avoid answeringa question in court, you risk losing your case, so each question must be dealt with fullyand completely.

This means that you must prepare for questions and even welcome them (or act as if you

welcome them) because they give you the opportunity to advance your case by dealingwith any doubts in the mind of your judge.

Do not judge t he q uestion (or take the q uestion personally)

Be careful not to judge the questions, or to display any negative attitudes to the questionsor to the person asking those questions. They may appear to you to be silly, obvious orirrelevant, but that will not usually be the point of view of the questioner who bothered toask them. Diplomacy and a proper demeanour is required at all times.

You have to act as if you welcome the question and offer to assist the questioner at all

times. The art of persuasion must be accompanied by a helpful and respectful attitude.You do not want to get the judge offside or alienate the person that you wish to persuade.Be positive, polite, friendly and respectful. Smile, and respond, no matter what you thinkof the question. You are a sales-person and the customer is always right to ask a question.


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Concluding comments

Overall, think of the questioning process as an opportunity. If handled successfully itenhances the arguments and makes them much more persuasive. Alas, the converse isalso true! View the questions as a necessary, even if somewhat challenging, part of your

overall presentation.

Be positive in your interpretation of the process and positive in your responses.Answering a question is a real opportunity to further your argument and to demonstrateyour mastery of the subject matter.

A guide t o further r eading

There is a considerable amount of literature on advocacy and oral communication skills inthe legal context, most of which has been very helpful and given real guidance in puttingthese materials together. The notes in this section have been sourced from the followingtexts, and we recommend them to students requiring further direction and assistance:

• J Curthoys and C Kendall, Advocacy: An Introduction (Lexis Nexis,Butterworths 2006) (particularly Chapter 5)

• C Kee, The Art of Argument: A Guide to Mooting (Cambridge UniversityPress, 2006)

• T Gygar and A Cassimatis, Mooting Manual (Butterworths Skills Series1997) (particularly Chapter 6)

• R Krever, Mastering Law Studies and Law Exam Techniques 6 th Ed (LexisNexis, Butterworths, 2006) (particularly Chapter 8)

• S Williams and J Walker, A Practical Guide to Mooting (EmondMongomely Publications Ltd 1995)

• B Wolski, Legal Skills – A Practical Guide for Students (Law Book Co,2006) (particularly Chapter 8)

• J Snape and G Watt, The Cavendish Guide to Mooting (2 nd Ed) (Cavendish2000) (particularly paras 64-70)


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Before ev ery p resentation: prepare, plan and practise – then perform and review

Prepare

Do the research. Know your material. Identify the key issues. Become the expert.

If you are going to be questioned in a presentation, make sure that you consider thearguments and the counter-arguments and put them into a logical order so that youwill be well prepared for questions.Familiarise yourself with the assessment criteria before you plan your presentation.

Plan

Plan out your presentation and write it up in advance but avoid the temptation to writedown every single word in a script.

Reduce your longer version to a set of headings, key sentences and dot-points (the

skeleton outline). Use setting out, numbering, headings, dot-points and highlighters toemphasise the structure of your presentation and your argument. A visible layout withheadings and numbered points helps you to see quickly where you are up to when youare doing the presentation. A continuous stream of words on a page does not help at all– it’s too easy to lose your place! Prepare an overview document or argument map thatlists the arguments and possible counter-arguments that could be raised on the issues.

Practise

Use the long version once or twice to practise the presentation, with the aim of:• getting the timing right and • familiarising yourself with the material.

Then let go of the long version and practice with the shorter version once or twice.(Confident, experienced presenters can go straight to the skeleton version.)Once you feel comfortable with the shorter version, practice giving the presentationwith some sympathetic friends or family members as your test audience. Make surethat they ask you some questions, so that you can practice giving answers.Ask for feedback and be prepared to accept criticism.

On the day

Use the shorter version, but if you are really prone to nerves, take the longer version

just in case of nerves – BUT reach for the security blanket only in dire emergencies!If you have prepared well enough and run through it a couple of times, you shouldhave the confidence to do it with the shorter set of notes.

The Moot: how much preparation?

Experts say that we use about 100-120 words per minute when presenting, so for a 20minute moot, prepare about 15 minutes worth of material and this will allow sometime for questions.

Introduction: 100-200 wordsBODY: about 1400 wordsConclusion: 100-200 words

(Test out your presentation and see if the 100-120 word/minute plan works for you.)


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After every p resentation, review your performance and your preparation.


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Make an A rgument Map using the FIRO layoutFACTS I SSUE R EASONING O UTCOME

‘FIRO’ is a good way to summarise your basic ‘case picture’ and to prepare your argumentson a useful look-up sheet. If you work together with your opponent in the lead-up to thefaculty moot, you can b oth p repare the arguments a nd counter-arguments t hat you need –and you can also w ork out in advance how to cope with questions t hat the judges m ay a sk.When yo u are using an argument map to prepare for a m oot, you should also include the‘core strength’ aspect under each issue so that whenever you are asked a question you cangive yo ur prepared response and then turn to the b est part of your argument and end on apositive note. Use short phrases a nd ke y words t hat you c an e asily nd u nder pressure.

CASE NAME:………………………………………………………………………….

FACTS GIVING RISE TO THIS DISPUTE:

(HINT 1: INCLUDE A BRIEF OUTLINE OF THE FACTS)

(HINT 2: INCLUDE BRIEF HISTORY OF THE LITIGATION)

APPELLANT : ……………………….. RESPONDENT : ………………………..

ISSUE 1: …………………………………

REASONING• argument 1

• argument 2

• et c

•

•

CORE STRENGTH:

ISSUE 1: …………………………………

REASONING• counter-argument 1

• counter-argument 2

•

•

•

CORE STRENGTH:

ISSUE 2: …………………………………

REASONING• argument 1

• argument 2• et c

•

ISSUE 2: …………………………………

REASONING• counter-argument 1

• counter-argument 2•

•


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•

CORE STRENGTH:

•

CORE STRENGTH:

OUTCOME DESIRED:

Review your performance af ter your moot

1.Describe in factual terms h ow you prepared for the event.

…………………………………………………………………………………………

…………………………………………………………………………………………

2. How long did you sp end on your preparation?

…………………………………………………………………………………………

3. What kind of notes did you make? Were they useful on the day?

…………………………………………………………………………………………

4. How did you feel before, during and after the exercise?[What was good an d what was not so good?]

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

5. What (if anything) will you do differently n ext time?

I WILL ………………………………………………………………………………...

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

I WILL NOT …………………………………………………………………………..


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…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………

NOTE: you should le this sh eet in your employment portfolio – you may be able to use thisexperience in a n interview as an example s howing h ow you a re a ‘reective l earner’.


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Do a SAP Review: S tyle, Attitude, P reparation

STYLE

Voice : too fasttoo softtoo many ‘ums’ and ‘ers’Consider the ca use: too e xcited a nd e ager?

too nervous?did not realise or even notice?

Eye Contact : looking u p a t the g roup or looking d own a t your notes t oo m uch?

Body Language: dgety or still? hunched or open? too many/ few gestures?

• Try sl owing down, using a pause, using the formalities, to give you s ome distance.• Visualise your voice oating out to the middle of the room, don’t focus o n your throat:

ie, focus o n where you want it to go, not where it is c oming from.• Become a l ittle m ore self aware – watch yourself as yo u perform.• You may n ot be able to control your feelings , but you can learn to control what you do .

ATTITUDE

Were yo u yo urself?Were you: scared, uncondent, combative, aggressive ?too ashy, over-acting, over-dramatic, playing for laughs?

Were you: condent, calm, controlled, engaging, knowledgeable, polite, respectful?

• Try to nd your own style, based on your strengths a nd personality.• Do not draw attention to the fact that you felt nervous – chances a re we didn’t notice until

you told us.• Fake it: act as i f you are condent and your condence will follow.

Hold your body u p (don’t hunch into yourself) and let the voice out.

Slow down your speed and tone: it makes you look co ntrolled and thoughtful.In a moot, let the formalities a nd the legal language protect you:

They make yo u look an d so und respectful.They g ive you some time to think.They remind you that your own personal views a re not the issue.They r emind you that it is n ot personally d irected at you.

“Thank yo u your Honour, in relation to that issue, I would submit that …”

PREPARATION : did your notes h elp or hinder?

• Have a clear ‘case picture’ that identies y our key arguments a nd strongest position– and learn how to maintain your focus o n that vision, even under questioning.

• Have an overview ‘argument map’ with keywords and key a rguments o utlined simply


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and clearly, so that you can nd your points / arguments u nder pressure.Arrange it by issues w ith arguments and co unter-arguments – all cross-referenced:(On issue one, if I am asked about X, I will say Y.)

REFLECT

What did you learn from watching yourself?

What did you learn from watching others? (steal from them!)

Handling Nerves an d Performance Anxiety

The si gns o f performance a nxiety

Man* !eo!(e %(a)# "ha" "he* a&e #o&e af&a)d of !$-()% !ea )n, "han "he* a&e of d*)n,6 and)ndeed6 "he na"$&e of "he %(a )% *#!"o# of !e&foan%e an;)e"* $,,e " "ha" )" ) "&),,e&ed-* "he a#e f),h" o& f(),h" &e !on e’ "ha" f)(( "he -od* )"h ad&ena()ne hen e a&e %onf&on"ed-* a !e&%e)4ed a""a% o& "h&ea" "o o$& $&4)4a(. The en e of !an)% and $nea e and "he%he#)%a( &e(ea e %an %a$ e "he ne&4o$ !ea e& "o e;!e&)en%e a n$#-e& of *#!"o#

• "he hea&" &a%e D -ea" 4e&* fa " D !a(!)"a")on• hand 6 nee and (e, #a* ha e• $nde&a and !a(# #a* !e& !)&e6 fa%e #a* -($ h and fee( -$&n)n, ho"• "he "h&oa" and #o$"h #a* d&* o$" D o& "he 4o)%e #a* 9$)4e&• "he !ea e& #a* en e an $&,en" need "o ,o "o "he "o)(e"• "he !ea e& #a* e;!e&)en%e "he en a")on of -$""e&f()e ’ )n "he "o#a%h o& a-do#en6

o& fee( )%• o#e e;!e&)en%e a en a")on of (),h"'headedne o& hea&" )n "he #o$"h’• "he !ea e&’ #)nd #a* ,o -(an and "he* f&ee e’.

The&e a&e #an* d)ffe&en" "&a"e,)e "ha" *o$ %an (ea&n h)%h )(( he(! *o$ "o %o!e )"h!e&foan%e an;)e"*. Ca&ef$( and "ho&o$,h !&e!a&a")on ) one of "he #o " effe%")4e o($")on"ha" )(( f)(( *o$ )"h %onf)den%e6 -$" &e#e#-e& "ha" #o " ad4o%a"e and !e&foe& ha4e(ea&ned ho "o ()4e )"h "he)& ne&4e . Go$ %an do )" "oo. O4e& "he ne;" fe *ea& a" La S%hoo(*o$ %an )#!&o4e *o$& )(( D )f *o$ "a&" (ea&n)n, "he "e%hn)9$e no and !&a%") e a!!(*)n,"he#.

Accept your nerves: performance an xiety may not go away

Do (ot 3ait u(til t4e (erves 5o a3ay. fo& #o " of $ "he* ne4e& do D e


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Admit your fear a(d accept your (erves. "he* )nd)%a"e "ha" "h) ) )#!o&"an" D and )" ) . +ono" "&* "o f),h" "he# o& a)" $n")( "he* ,o a a*. Med)"a"o& ha4e a "e%hn)9$e fo& dea()n, )"h$n an"ed "ho$,h" and *o$ %an ada!" )" "o dea( )"h $n an"ed ne&4e )#!(* a((o *o$& e(f "ono")%e "he ne&4e -$" "hen &e"$&n "o "he "a )"ho$" %a "),a")n, *o$& e(f fo& -e)n, ne&4o$ .=Go$ %an "a( and !e& !)&e a" "he a#e ")#e @ Sa* "o *o$& e(f Oh6 "he&e a&e #* o(d

%o#!an)on .’ And "hen


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Try some self-help therapy

,isualisatio( Tec4(i6ues. )#a,)ne *o$& e(f ,)4)n, "he !&e en"a")on )n a !o )")4e a* and)#a,)ne *o$& e(f !ea )n, )n a (o$d %(ea& a $&ed 4o)%e. e" )n"o "he ha-)" of !&o


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Presentation Tips and Strategies

On the day

• Co(ce(trate o( 4o3 t4e audie(ce is 5oi(5. "he e* ) $e ) no" ho *o$ fee(6 -$"he"he& "he ,&o$! ) ,e"")n, "he #e a,e. Man* !eo!(e fee( -ad )n )de -$" no'one e( eno ho *o$ a&e fee()n,. =The* %anno" (oo )n"o *o$& e%&e" hea&" @ Rea() e "ha" *o$& fea&

doe no" ha4e "o ho D and "a e %o#fo&" f&o# "he fa%" "ha" on(* *o$ )(( e4e& no ho*o$ &ea((* fe(".

• !4are your messa5e 7 (ot your symptoms8 Lea&n ho "o f(oa"’ -* d) o%)a")n, *o$& e(f


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• %oo: at t4e audie(ce a(d co(sciously tal: to t4em9 P&opost as you 5o. #a e )" %(ea& hen *o$ a&e #a )n, "&an )")on and #o4)n, "h&o$,h"he !&e en"a")on6 fo& e;a#!(e

Th) ) a %a e a-o$" JJJJ.The&e e&e "h&ee e* ) $e )n "h) %a e "he* e&e JJJJThe f)& " ) $e a&o e -e%a$ e JJ.J.The&e a&e "h&ee &ea on h* "h) ) )#!o&"an" JJJ.The #o " )#!o&"an" ) $e )n "h) %a e a JJJJJ.T$&n)n, "o "he e%ond !&o-(e#JJJJJIn $##a&*6 JJJJJ.The ),n)f)%an%e of "h) %a e ) JJJJJThe


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Further reading and viewing

K Un)4e& )"* of To&on"o S"$den" Se&4)%e O4e&%o#)n, Pe&foan%e An;)e"*’h""! . "$den" e&4)%e .$"o&on"o.%a &e o$&%e !e&foan%e an;)e"*.a !;

K +&. a#e C. M%C&o e* ) a %o##$n)%a")on &e ea&%he& a" "he +e!a&"#en" ofCo##$n)%a")on S"$d)e 6 Un)4e& )"* of A(a-a#a'B))n,ha#6 and h) )"e ha ()n "o #an*%o##$n)%a")on an;)e"* e(f'"e ")n, )n "&$#en" and #an* a&")%(e on ho "o o4e&%o#e%o##$n)%a")on an;)e"*

h""! .

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