What is mooting and how is it done?

What is mooting?
Why should I get involved in mooting?
How is mooting done?
Preparing for a moot
Organising a mooting competition
Further information

What is mooting?

Mooting is the oral presentation of a legal issue or problem against an opposing counsel and before a judge. It is perhaps the closest experience that a student can have whilst at university to appearing in court.

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Why should I get involved in mooting?

Mooting now forms a compulsory part of certain law courses, but is still a totally voluntary student-organised activity in other law schools. Whether or not mooting is compulsory at your law school, gaining mooting experience can have a positive impact on your future career.

As many students will be aware, the legal profession is an increasingly difficult one to enter. Application forms for legal professional courses, solicitors’ firms and barristers’ chambers often demand that a candidate can provide evidence of their advocacy or mooting experience whilst at university (over and above any of the more traditional areas of advocacy such as debating).

Mooting may also help you to build confidence in public speaking, general research, and presentation skills. In other words mooting experience can benefit every student whether or not they plan to follow a traditional legal career path upon graduation.

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How is mooting done?

The Problem

A typical moot problem is concerned solely with a point (or points) of law. Normally it will take the form of a case heard on appeal from a lower court with the grounds of appeal clearly stated.

The Teams

A moot usually consists of four speakers, divided into two teams, each consisting of a leading and junior counsel. One team represents the appellants, the other the respondents. Mooters may be judged individually or as a team.

The Moot Court

The moot 'court' should reflect, as far as possible, a courtroom scenario in reality. The moot is presided over by at least one judge who delivers a judgment at the end of the moot on the law and on the result of the moot itself. The presiding judge is supported by the clerk of the moot who is responsible for providing the judge, when required, with a copy of each legal authority cited by the mooters in the course of their arguments. The clerk also times the moot speeches. The two teams of mooters sit at separate tables, taking turns to stand to present their arguments to the moot court.

A moot 'speech' will normally have a time limit of between 15 and 20 minutes. So be prepared to be on your feet, either presenting your argument or answering questions about your argument, for that amount of time. For the duration of their arguments the mooters are required to maintain the appropriate courtroom manner (remembering, amongst other things, to address the court and fellow counsel in the accepted form). Further, to add a touch of authenticity to the moot, the participants are often required to wear gowns.

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Preparing for a Moot

Identifying the grounds for appeal

Mooters should first read the moot problem carefully in order to ascertain the precise grounds of appeal. The grounds are usually stated in the body of the problem, but if they are not the grounds will have to be formulated on the basis of the decision of the lower court which is being appealed against. It is perhaps a good idea to re-write the grounds of appeal in your own words in order to ensure that you understand the essence of what you will be arguing before you commence your research.

Conducting research

It may sound obvious, but ensure from the start that you and your moot partner know which side you are arguing for (ie either the appellant or the respondent). Given that most moots are team competitions, it may be convenient to divide the research between the leader and junior, but co-operation is essential because many moot teams lose because each team member is unsure what the other is arguing.

Begin your research by consulting any text books with which you are most familiar. Then check the footnotes — they are often a godsend to a mooter. Having ascertained which footnotes are relevant, make a note of the particular principles or points of law to which the particular footnote refers and write against each point the name of each statute, case, article, or book to which you are being referred. That will give you a start but expect many gaps in your research at this stage. You may also wish to consult old editions of text books (as this can contribute to the understanding of the points of law at issue by placing them in their historical context). Then continue by researching all the references that you have unearthed carefully making a note of any gaps in the research as they appear.

Textbooks are not of course designed as aids to mooting and, consequently, they might be too general and thus of limited assistance. If this is the case you will need to consult one of the practitioner texts—such as the relevant volume of Halsbury’s Laws. Other publications worth consulting in the initial stages of your research are Atkin’s Court Forms and The Encyclopaedia of Forms and Precedents. In order to ensure that you are up-to-date don’t forget to check Current Law and its yearbooks and citators and Current Law Statutes Annotated.

Finally check LEXIS, WESTLAW, or any other internet service to which you have access for the most recent developments. While citing information from internet retrieval sites in moot speeches should be avoided, the internet can provide a rich source for other useful information such as statistics. By this stage you will probably have to cut down the material — you may be limited by the moot rules as to the number of cases and authorities that you may refer to, but it is best to concentrate only on the most relevant cases and avoid excessive citation of authorities in any event.

Structuring and presenting the argument

Having decided what view you are expected to persuade the judge to accept, you must now work out how your argument is to progress to that conclusion. The easiest way to note down the required stages of the argument is by arranging each discrete point in a sensible order and then numbering them accordingly. Generally, assume that the moot judge is familiar with the area of law in question and do not commence your argument on too basic a level. It may also be an idea to start with a point of law that is uncontroversial in order to find your feet before considering issues upon which you are likely to be questioned and contradicted.

Be brief and make your submissions as intelligible as possible, avoiding excessive use of legal jargon. When formulating your arguments, bear in mind basic issues such as the doctrine of precedent (for instance, if the moot is in the Court of Appeal, do not propose inviting the court to overrule a decision of the House of Lords in order to facilitate your argument — although you might ask the court to distinguish any such troublesome case).

Make a proper note of the full citations upon which you intend to rely, for easy reference during the course of your speech. Be sure also that you can give a page reference for every passage cited from a judgment. Do not refer to authorities for the sake of it - the judge may question you in detail on any particular case mentioned - instead be prepared to recite a precise proposition of law that you think any case cited is authority for. Take care when referring to secondary sources and above all remember that you are not writing an essay!

Finally, after all that — do not read out your moot speech. It is an aide memoir only. The moot will test not only your ability to present the argument, but also your response to questions and flexibility when interrupted by the judge.

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Organising a mooting competition

Most law schools will have a student committee, one member of which will be responsible for mooting. This central figure has traditionally been given the rather curious name of 'master (or mistress) of the moots' at many law schools. This may be the person to make initial contact with in your law school. Alternatively, a member of staff may co-ordinate mooting activities. Either way, most law schools will have up-and-running internal mooting competitions and also enter teams in external inter-university competitions.

You will probably find that such competitions are already ongoing at your law school, but if this is not the case the basics of organising a moot competition are as follows:

  1. Establish the rules - Consider the rules which should be adopted for the competition, including the order in which the mooters are to speak, the timing of the moot speeches, whether or not the clock will be stopped during any questioning of the mooters by the judge, and whether the appellant team should be permitted a right of reply.
  2. Select teams and opponents - The names of all those interested in entering the competition should be listed and divided initially (insofar as possible) into teams of four. Each set of four mooters will argue together in a moot. Bear in mind the status of each mooter, that is their particular year of study and whether or not they have studied or omitted particular legal subjects. Where possible, it is best to choose opponents who are in the same year of study and who will have studied similar options.
  3. Set the moot problem - It is usual for the moot problem set to be concerned solely with a particular point of law. The facts are assumed to be as recorded in the moot problem and the legal issues on appeal should be clearly set out. The moot court will generally (though not always) be the Court of Appeal or the House of Lords. The mooters should be told clearly for whom they will argue and whether they are leading or junior counsel. [An archive of recent problems used in the OUP & BPP National Mooting Competition can be found here].
  4. Set a date, time and venue, and appoint a judge and clerk - The moot judge may be an academic, postgraduate student, or member of the legal profession as the particular competition requires. The judge should be sent a copy of the moot problem and competition rules in advance of the moot. A volunteer should be found to clerk the moot. The clerk will have responsibility for the timing of the moot and also for providing the judge with copies of the authorities (eg law reports) when necessary.
  5. Exchange of legal authorities - The usual rules of mooting require that these authorities be exchanged in advance of the moot. This means that each team should supply for the judge and the opposing team a full list of all the legal authorities upon which they intend to rely on in the course of their argument.

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Further information

For further information on mooting, preparing a moot problem (and drafting 'skeleton' arguments); organising a mooting competition, judging a mooting competition; court room etiquette; and examples of moot problems; see John Snape and Gary Watt's How to Moot: A Student Guide to Mooting 2e.

Finch and Fafinski's Legal Skills 3e contains a very accessible chapter devoted to mooting, and an accompanying online resource centre includes examples of mooting preparation plans and sample mooting problems.

For details of current national mooting competitions, helpful tips and sample moot problems see www.mootingnet.org.uk


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