J. Frazier McBride, ‘Mooting: The Facts and the Fiction’

 

Author: James Frazier McBride

As the 2019-2020 President of Mooting, I was asked to write a blog on the impending First Year compulsory moot. If you are not due to complete the compulsory moot but would also like to learn more about mooting, please do have a read. Perhaps you are also just looking for something else to read in a break from studying… welcome to the world of mooting.

 

Where to start?

It is almost natural to jump straight into – How do I cite case authorities? What is the University of Glasgow moot court like? What is court etiquette? What are rebuttals? Can I “object” in a moot? What is the courtroom set up like? How do I respond to the judge’s questions? How do I best prepare? WHAT EVEN IS MOOTING?…

I will address some of these burning questions and common misconceptions. However, can I first invite you to leave the moot itself to one side. This may seem counter-intuitive but, even for just a moment, appreciate the moot itself is only part (although indeed quite a significant part) of the challenge. In reality, this can be a very daunting experience.

Whether this is your first time speaking publicly or whether you have a wealth of experience, mooting poses fresh challenges. I was fortunate to have a good deal of public speaking experience going into University although I had never ‘mooted’ before. I had even delivered speeches in courtroom settings for competitions but had never been exposed to mooting pre- University. I was intrigued and jumped in to become First Year Representative for the Committee. Since then I have learned that the first step is for each individual to challenge their own preconceived notions of mooting.

Not wanting to stray too far from topic, in the film ‘Bridesmaids’ Melissa McCarthy’s character tells Kristen Wiig’s character, “You’re your problem Annie…and you’re also your solution.”

This is true of mooting.

Arguably, one of the biggest blocks to students enjoying mooting and experience success is pre-decided misconceptions. Mooting is not something reserved for those with an immense academic prowess or for the best orators – the only thing that stands in the way of good preparation and a finessed on-the-day performance are the misconceptions and perhaps pre- determined dislike you (my first year-self included) may have of mooting. Even have had the opportunity to moot prior to this it is worth taking a moment to appreciate these preliminary thoughts.

Let me now address – what is mooting? Mooting is a simulated test of appellate (not trial) advocacy. Students are given the facts of a problem and so factual disputes are overtaken by legal ones. Students do not have witnesses nor a jury and most importantly, however tempting, you cannot shout “I object!”

When you walk into the Sir Alexander Stone Moot Court at the University, you will notice a variety of seating areas but as you will expect, counsels are seated around the large table in the centre. The clerk of the court will join you at this table – although this may not be the case for the first year moot. The judge for your moot will be sitting at the raised bench. Do not underestimate how the set up of the room can affect your performance. Having been on the Committee for two years and now as President, I have had the opportunity to be involved in, organise and attend many moots and it would surprise you how many moot participants fall into the trap of seeming to present their case to the opposing side. The court set-up means you are facing the opposing team but it is important to turn and face the judge when presenting your arguments even if you are using the small desk podium in the moot court.

 

There will be a Junior and a Senior Counsel for both sides. The order of speeches is – Junior Counsel for the Appellant; Junior Counsel for the Respondent; Senior Counsel for the Appellant; Senior Counsel for the Respondent. When giving your submission, please take note of court etiquette. The judge is to be addressed as “Your Ladyship/Your Lordship” or “My Lady/My Lord”. It is also useful to note that as counsel you are not presenting your opinion on the matter before you, you are submitting legal arguments to the court and so the phrase “it is submitted that…” is commonly used. I will not attempt to go through all aspects of court etiquette as you will be directed to these for your compulsory moot, however, these are two key features to get used to.

People often ask, how should I approach selecting and using authorities? I like to think of authorities as a car. The car doesn’t technically take you from A to B, you drive the car but if you walked, you could more easily get lost (acknowledging the fatal flaw of this comparison = driverless cars). Authorities should not be taking you from the beginning of your submission to your conclusion, your legal arguments should. Authorities should also be good milestones to ensure you are keeping to your legal arguments. If you didn’t have authorities you could perhaps get lost in a mire of unsubstantiated legal debate. What I mean by this is that cases and legislation should supplement rather than dictate your arguments.

Effective preparation and use of the authority ‘bundle’ which you will have provided the judge with beforehand will no doubt improve your performance but there should be a clear and structured thread of you and your accompanying counsel’s arguments throughout. When researching authorities, those that are authoritative both in the court delivering the judgment and in their ratio are obvious guides. Look for those that set out a legal test clearly or perhaps illustrate an uncommon nuance of law or show a factually similar incidence in which the remedy that is sought was awarded. Importantly, in the moot, remember to cite the full citation.

Also, try to ensure you have allowed the judge an adequate amount of time to find the authority in your bundle, to check the citation, to find the page and even the paragraph to which you refer. In the heat of the moment, even the best moot participants can forget the panicked judge scrambling through the pages of a very weighty book or pile of pages to find the sentence to which you are referring. The central message here and more widely is take your time and build a rapport with the judge through your communication, being attentive, eye-contact and answering their questions.

Senior counsels can also address arguments made by one/both of the opposing counsels. It is important to use court language here and throughout in referring to counsels as “my learned colleague/friends…”. Rebuttals are an extremely useful tool to substantiate your own argument but do not allow this to impact your arguments so try to keep them concise and focused.

 

An area I would also like to highlight is presentation skills. Mooting is like a deliberate walk not a run. The pace of a good submission isn’t too slow where concentration of those around you wanders nor do you want to rush. The tone of a submission shouldn’t be over-zealous however, it is important to vary your tone to maintain the judge’s attention and use this to emphasise the nuances of your legal arguments. For hand gestures, be cautious of overusing hand gestures in an unnecessary manner, however, they can be extremely useful to enhance and emphasise a key aspect of your argument. However, I would encourage you to develop your own advocacy style and here, there is no right answer. Just like the question of having a speech/notes in front of you – this is entirely your choice for what is comfortable for you.

A further piece of advice would be – do not be deterred if you find yourself acting for one side when you feel the other has a stronger legal position. Most moot problems are fairly balanced and not there to deliberately catch you out. There may seem to be a naturally more logical conclusion for the appellant and their remedy. The quality of your arguments, correlation with your moot partner’s submissions, use of authority and advocacy are factors which will determine your mooting success

Keep an eye on the activities and opportunities myself and the Committee organise for practical experience of the above. I deliberately haven’t gone into all aspects of mooting as I don’t want to overwhelm, however, hopefully this short blog allows an insight into the somewhat daunting world of mooting and, in reference to Melissa McCarthy’s quote above, it is you who is the solution to a successful moot.

Best of Luck!

James Frazier McBride (President of University of Glasgow Mooting 2019-2020)

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