MOOTING GUIDELINES

FOR USE IN THE 2017 CONSUMER LAW MOOT

NARRABUNDAH COLLEGE
WHAT IS A MOOT?

A moot is a legal argument based on a prescribed set of facts. Mooting is designed

to teach and test a range of intellectual and practical skills, and to give you an insight
into the operation of the legal system. Moots simulate as closely as possible the
operation of a real court in our circumstances, the conduct of an appellate court.

Participants in the moot must work with the facts and the law provided to them. You
cannot make up additional facts or refer to materials (eg, statutes or other cases)
that are not referred to in the materials. You must explain the relevant legal
principles, illustrate the application of those legal principles to the facts and convince
the court your client should succeed.

Mooting has its origins in Kentish Laws of the 8th Century when moots were open-air
meetings of the populace that discussed local affairs.

The development of modern day mooting is closely associated with the development
of the Inns of Court in England. The modern moot had developed its principal
characteristics by the end of the 14th Century. Rashdall, in Universities of Europe in
the Middle Ages (1936, Vol 3, pp 453-454), records that moots trained pure intellect,
encouraged habits of laborious subtlety, heroic industry and intense application.

Mooting is different to debating. Mooting is not merely a display of verbal skills. It is

an intellectual exercise that requires research, advocacy, teamwork and interaction
with the audience (ie, the bench). In a moot, the content of the arguments and the
ability to answer questions are more important than fluent verbal presentation.
Remember, the object is to convince and persuade an informed audience that the
combination of relevant legal principles and the facts give rise to a conclusion that
favours your client. Communications skills are vitally important, but an effective
advocate seeks to do more than make an impressive sounding speech.

Adequate preparation is the key to a successful moot or court appearance.

Anticipate all the legal issues. Identify the material facts and be familiar with the
relevant cases. Try to anticipate the arguments for the other side. Figure out ways
of rebutting those arguments. And dont be surprised when you are asked questions
by the judges!

Remember the six Ps:

Proper preparation prevents particularly poor performance.

COURTROOM ETIQUETTE

There are a number of matters of ethics and courtesies that apply generally in all
courts of law. Some of these are as follows:

ETHICAL DUTIES OF COUNSEL

Duty to the Court

Perhaps the most important aspect of the role of a barrister is his/her duty to the
court a duty to assist the judge and conduct his/her case honestly. This means
that you must never suppress information, even if it is damaging to your case. You
should never ignore a relevant precedent, even if it goes against your case. Since
you must advise the court of such cases, it is often better to distinguish them up front
and argue why they should not be followed.

Where your duty to your client (to try to win) conflicts with your duty to the court (to
disclose damaging matters) the latter duty overrides the former. You are not just a
hired gun. You are an officer of the court with higher duties.

COURTESIES
Where to sit

Counsel for the Appellant/Plaintiff/Crown sit on the right of the bar table (ie, to
the judges left). Counsel for the Respondent/Defendant sit on the left of the bar
table (ie, to the judges right).

Stand Up/Sit Down

Whenever you are addressing the judge, you should stand. If opposing counsel
stands to make a submission during the course of your address, you should sit
down. This avoids the danger that counsel will argue between themselves rather
than courteously addressing the court.

It should not be necessary in a moot to interrupt opposing counsel. If the judge

directs a question to a barrister who is not presently standing, take the cue and sit if
you are standing. Conversely, you should stand if you are the one addressed in this
instance.

HOW TO ADDRESS THE COURT

The correct term to be used when referring to a judge is Your Honour. You can
also address the Court in a neutral sense eg, If the Court pleases or If it pleases
the Bench.
HOW TO ADDRESS OTHER COUNSEL

Opposing counsel is referred to as My friend, or My learned friend. The other

advocate on your team is referred to as My learned colleague.

CITING CASES AND AUTHORITY

When citing cases to the court, the full reference to the case should be quoted
unless you seek leave from the court to dispense with full citations. For example, the
correct way of citing the case Bloggs v Bloggs [1989] 2 All ER 324 is as follows:
Bloggs and Bloggs, 1989 volume 2 All England Reports at page 324. You should
check the complete citation of cases to which you intend referring before coming to
court. (Note that in civil matters the v is referred to as and while in criminal cases,
v is referred to as against.) You can seek leave from the court to dispense with full
citations at the commencement of your submissions. The court is more likely to grant
leave where it has been provided with a brief outline of your argument, and a list of
cases (with the correct citation) upon which you will be relying.

HOW TO REFER TO JUDGES WHEN CITING CASES

Australian Judges: They are referred to by their full titles eg, Justice Dixon or
Chief Justice, Sir Garfield Barwick not by their abbreviations such as Dixon J or
Barwick CJ. It should be noted that Chief Justice Barwick is permissible.

English Judges: There are two classes of appellate judges in England. The Lords of
Appeal in Ordinary are the most senior judges who, historically, were appointed to
the House of Lords, the upper house of the British parliament, to exercise its judicial
functions (until the Supreme Court of the United Kingdom was established in 2009 to
assume the judicial functions of the House of Lords). A Lord of Appeal in Ordinary is
referred to as Lord [name] (unless he or she is of higher rank, like a Baron).

Some Lords retain their own name (eg, Lord Atkin), while others include a reference
to a place in their title (eg, Lord Morton of Henryton). You should check by looking
at the report itself or some reference work to see if the Lords have a territorial title
(eg, Lord Bridge of Harwich).

Judges of the Court of Appeal who are not peers of the realm are Lord Justices of
Appeal (LJ) and are referred to as Lord Justice [name]. Confusingly, some judges
of the Court of Appeal are also members of the House of Lords, although they are
not Lords of Appeal in Ordinary (in other words, they are entitled to sit in the House
of Lords but they do not participate in judicial proceedings with the Lords of Appeal).
Lord Denning, Britains most famous judge of the last century, was a member of the
Court of Appeal and the House of Lords, although he did not sit as a Lord of Appeal
in Ordinary throughout most of his career.

If a judge has a title it is best to use that title eg, Brett MR should be referred to as
The Master of the Rolls, Sir Balliol Brett. If the judges full name and title are not
known, refer to a reference work to determine that information.

WHAT TO WEAR

For the purposes of the mooting assessment task, your attire DOES NOT MATTER.

HOW TO CONDUCT YOURSELF

It is important that you retain complete self-control during the course of proceedings.
If you wish to persist in disagreeing with a 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.

PRESENTATION SPEAKING

Speak clearly and loudly enough for the court to hear you. Do not read your
submissions: be prepared to speak about the case from point form notes. Be
prepared to answer questions from the Bench and know your cases well.
Remember, during a moot, you will have a dialogue with the court, rather than
presenting a speech. Emphasise strong arguments rather than attempting to cover
everything. Remember you are acting as an advocate. Do not use the personal
phraseology, I think ... or It is my opinion .... Rather, use the neutral: It is
submitted ... or It is suggested ....

GENERAL

Be thoroughly prepared, do your best, and most of all, dont take it too seriously its not
the end of the world if you dont know the answer to the judges question, stumble over a
case citation, or have to look at your notes to remember a point in your argument,
PROCEEDINGS IN COURT

1. Court Clerk will announce that the court is ready Silence! All stand, please.
2. Judge enters and bows all bow. W hen the judge is seated, the rest of the
court may sit down.
3. Court Clerk will then announce that the court is sitting and state the case for
hearing, as in Bloggs and Bloggs.
4. Senior Counsel for the parties will then announce their appearances starting
with counsel for the appellant: If Your Honour pleases, my name is X and I
appear with my learned colleagues, Y and Z, for the appellant. Senior Counsel
for the respondent then follows in a similar fashion. If you have any written
submissions, you can seek leave when you make your appearances to
approach the bench with the submissions. You should provide a copy of the
submissions to your opponents at this time.

APPEALS / MOOTS

5. Appellants counsel will proceed to argue the case. Each student on that side
will have eight (8) minutes to make his/her submissions.
6. Respondent counsel will then open the Respondents case. Each student will
have eight (8) minutes to make his/her submissions.
7. The bench may retire to consider the matter. If so, the court will be adjourned
all stand while the judge(s) leave.
8. The bench will return all stand and bow.
9. At the end of the moot, the judge will discuss your performance, time permitting.

Moots are always cases before a superior court where there are no witnesses or
jury.
MOOTING SKILLS CHECKLIST (will be used to assist in your assessment
against the rubric)

OPENING CONCLUSION

Stands as judge enters, then Summarises with flourish in point

bows
Introduces self
Introduces partners
Explains who acting for
Checks that judge has written
submissions
Succinctly states overview of
facts and issues
Clearly identifies if facts are
missing, unclear, or presumed
Explains clearly the only or
alternative conclusion(s) judge is
being asked to reach
Explains division of issues
between partner and self
form
GENERAL
Sits when opposing counsel is
speaking
Speaks from memory or outline;
does not read
Speaks at appropriate pace
Good pitch and clear diction
Culturally appropriate language
Eye contact with judge
No distracting behaviour
Effective use of gestures

CONTENT

Quotes rule allegedly applicable;

cites judge and page number;
speaks slowly
Makes submission based on that
rule
Listens carefully to judicial
questions
Is prepared to respond to
predictable counter-punches (eg,
Isnt that case distinguishable?)
Checks to see if judges
questions are answered to
judges satisfaction
Has appropriate strategies when
stuck
YOUR ARGUMENT
LIMITS OF ARGUMENT

In preparing their arguments counsel may refer to extracts from cases and statutes
provided to them in the preparation materials for this task, or in any material on the
Google Classroom page for Consumer Law (first level authorities). In addition counsel
may refer to any cases and statutes referred to in the first level authorities (second
level authorities). Finally, counsel may refer to cases and statutes referred to in
second level authorities. Reference to any other cases or statutes to establish
authority is strictly prohibited.

WHAT IS EXPECTED OF YOU

Each team is required to prepare a written summary of argument outlining the

submissions they will make. The essential feature of a summary is that it lays out in
logical sequence the line of argument that is to be presented and the authority for
each proposition of law that is to be argued.

Written submissions are to be provided to the judge on or before the day and time
stipulated by the assessment task sheet for this task.

Counsel should anticipate being energetically questioned by the Bench about their
case and are expected to be able to respond logically to the questions asked and
comply with directions given (eg, I do not wish to hear you further on that point; tell
me about the law regarding X). They must be prepared to resume their
argument when the Bench has been satisfied on a particular issue.

PRESENTATION OF ARGUMENT

Counsel should be prepared to speak for eight minutes each. Where an advocate
is interrupted by questions from the Bench, he or she will be expected to adjust
the submissions to conclude within the allotted time. You may not seek extra time
because of questions.