All moots, regardless of the competition or level, require planning. We plan which cases we want to rely on, we plan the structure of our argument, we plan who will act as junior and senior counsel. Many of us will go as far as to plan ‘speeches’ or ‘scripts’ for when the time comes for us to present our submissions. This is certainly what I did before the first time I was competing in the semi-final of the Deans Cup. Did I plan, though, for the judge to interrupt me during my first submission to politely inform me that he was very familiar with the case on which I was relying and to ask me to move on to the latter part of my argument? No. So more than half of my submissions were pulled from under my feet, leaving my well-crafted ‘speech’ essentially useless. Although I still filled my ten minutes – the judge was sure to ask me enough questions. Needless to say, we did not win the moot.
This was the first time I fully realised that although competitors in moots are bound by restrictions, on time and authorities for example, the same does not apply to judges. Since then I’ve encountered a wider range of judges, each with their own styles. Although (luckily) I’ve never been thrown off my stride as much as I was in that semi-final, I’ve experienced a massive variation in how many questions judges ask, how far they’ll push you outside of your cited authorities and how obvious they make it when they think you’re talking absolute nonsense.
This isn’t an easy problem to tackle when mooting because judges can be pulled from academia or practice; unless you’ve come across a judge before, there’s very little way of planning for their judicial style. So how do we prepare for the unknown? There are some tips which should stand us in good stead no matter what kind of judge we’re faced with.
Primarily, it’s important to approach your moot as an interaction, not a presentation. Within our legal system the job of an advocate is to assist the court in making their decision on the case; a moot is no different. You are there to explain your legal position to the judge as far as it is helpful to them and so the most important thing is that you allow them to be an active participant and not a passive observer.
When being asked a question, it’s key to listen fully and not interrupt – this sounds obvious but it is a common mistake made when mooters are nervous and keen to answer quickly. Take your time to consider your response and, when appropriate, don’t be afraid to keep your answer short. This will serve you much better than rushing in to an answer that you haven’t considered and isn’t fully relevant.
This being said, the obvious difference between a moot and real submissions in a court is that the judge is not only there to judge the law – they are there to actively assess your advocacy skills. This is important because it means that sometimes moot judges ask questions purely to test your conviction in the argument you are putting forward. If you are sure that you’ve understood a case or applied the law correctly, don’t let a judge sway you. Judges will often want to see how well you stand your ground under the pressure of their questions. It’s important to always be respectful but sticking to your guns can pay off (provided your understanding of the law isn’t completely wrong!).
Essentially, as we gain more experience our research skills, presentation and argumentation should improve and thus we should become more able to tackle whatever a judge might throw at us. Regardless of experience, though, simply expecting the unexpected and understanding that there is no rule-book for judges at least allows us to prepare for the possibility of a difficult interaction with the bench.
4th Year LLB and Mooting Society VP