Mooting 101

Mooting, I admit, is not my forte. Based on the competitions the faculty organises, my friend and co-blogger, Alistaire, would be the maestro when it comes to the written submission. So, this entry is based on my experience taking it as a subject.

Essentially, mooting is an on-hands role play at the appellate level. You and your partner/teammate are to argue your case before a judge (the Moot Master/Mistress). Unlike mock trials, your arguements are based on facts that have already been established viz the mooting question. What usually happens is you are given a mooting question, either as a consequence of entering a mooting contest, or having to set for a mooting paper that particular semester. The question would normally be a judgment of a court at first instance that is, when the facts have already been pleaded and established, and the judge of that level would have already made a decision on such facts based on the law he or she would have thought correct. The reason why it is on appeal is obviously because one of the parties to the action think the judge wrong, but wrong on the law he or she would have applied, not the facts!

An abstract example would be a case where facts A, B and C exist, and facts B and C had been considered material when the judge made his conclusion on the laws applicable, conclusion X. One of the parties would beg that the conclusion should not have been conclusion X but conclusion Y. Or one of the parties might want to point out that fact A is indeed material as well. That is how mooting works.

A more applied example would be, say, in an action for defamation. Lets say that the defendant called the plaintiff something in the like of “Not only is he a liar, but he is so fat he could roll over the grand canyon and get stuck” and the judge awared for the plaintiff on both counts of calling him a liar (which was found false) and also that he is fat so he could get stuck in the grand canyon. The plantiff might appeal admitting the first fact (ie calling him a liar) but then might wish to point out that the second fact is immaterial because insults are not to be taken as defamatory. Defamation is essentially about postulating a fact knowingly believing it to be false, and spreading such a fact.

In a moot, you argue based on the law to be applied. A simple dispute would be over, say, an exclusion clause, and whether it would be applicable in the dispute. The fact that the defendant had caused damage to the plantiff is quite plain, and neither party would dispute it, but the defendant would wish to rely on such a clause to absolve all and sundry his liability towards the plaintiff, while the plaintiff for obvious reasons would wish to argue that such a clause would not be applicable.

Having dispensed with that, there are a few salient points to consider when you take part in a moot. They are as follows.

1. Dress appropriately. A typical black suit and tie for the lawyer, i.e. the works, if you will, and black sparkly shoes to boot. Looking smart in the courtroom makes a difference since everyone likes a looker.

2. Mind your courtroom manner! Mooting isn’t a debate. You don’t shout your opponent down, you make humble submissions before a judge. “Being officers of the court, you are basically the judge’s slaves” is what one UiTM lecturer once said to bring the point home. Nicities such as “May it please this Court…”, “Much obliged” and so on make for good presentation marks on the scoreboard. 

3. Use correct pronounciation. The case of Donoghue v Stevenson [1932] AC 562 for example, is pronounced “The case of Donoghue and (never ever “versus”!) Stevenson, reported in the year nineteen thirty two in Appeal Cases at page five hundred and sixty two”. It may be a bit of a mouthful, but that is how things are. If its a criminal case, say like PP v Ibrahim it would be pronounced “Public prosecutor against Ibrahim”. If the year is in rounded brackets as opposed to square brackets, like (1932) instead of [1932], you substitute the phase “reported in the year…” with “decided in the year…”.

4. Have a good grasp of the legal principles involved. You don’t have to remember facts of authorities in detail, but do understand the principles underlying them. This is useful when the judge asks you questions (and believe me he will) that might attempt to trick you. For example, the simple principle that the tort of nuisance applies only in relation to damage to land use and not to injuries to the person once saved my friend Alistaire when the judge asked him whether, if he won (he was representing the plaintiff), damages could be awarded to his client based on the fact that the client had sustained personal injuries. 

5. And last but not least, be confidant! The courtroom is sort of like a tennis feild, and you are playing tennis with the other side with the judge as the referee. Never be afraid to postulate your take on the issue, that is, nicely, of course! Confidence is not arrogance, and know where the line is drawn between the two. If you keep this and what has been said above in your brain at all times, most likely you would be coming out of the court smelling like a rose, Ally McBeal style!

LAW572: Cyber Law

One of the elective course offered to Law Students in the 4th Semester at Universiti Teknologi MARA Malaysia is Cyber Law (Bachelor of Legal Studies (Hons.) Programme Structure).

Cyberspace was born with the invention of the Internet, a generally accepted opinion. Because of its digital form, it becomes a new frontier for the legal world. As humanity becomes more dependent on this virtual world, activities – both good and bad – trickle over in there. Heck, an extreme is online rape – where your character or identity online was ‘sexually raped’ by another. Sounds weird and unbelievable, right? But it happens (Link). So how do you handle this?

Another question which Cyber Law in UiTM covers is data protection. How much of your information that you are giving away being exploited and used against you? Well, you do know that personal information includes you password, date of birth, mother’s maiden name, pet’s name, school and other ‘innocent’ data which you disclose on social networking sites like Facebook, Friendster and MySpace. Perhaps you accidentally blogged about it. Hey, these days you do not know who’s being paid by whom at what rate to do what online. As a human being, what right do you have against such exploitation?

In this physical realm, if you defame someone in Ashford or Muar, you will be subjected to the laws of the land as it is in England or Malaysia. But what if you are in New York and you are defaming a person or company in Russia in your blog? Are you protected by geographical and geopolitical immunity? Or, for example, you forward seditious materials via e-mail. Are you liable for any crime? Apparently, the New Yorker can be sued by the Russian person, natural or corporate.

In this elective, you will also learn the laws affecting e-commerce, copyright, blogging, spamming and many other ‘cyber’ issues.

From a few friends who are in the field, I would like to state for the record that Malaysian lawyers versed in cyber law is very much in demand. It’s a matter of looking for the opportunities before the bandwagon arrives.

Legal Research Methodology

At one point of time, you will be exposed to legal research methodology. This subject is important to assist you in doing your research for the Honours paper as well as future researches. Did you know that you have to do more research, reading, analysing and digesting information after graduation? What? Please do not tell me you’re shocked? What do you think people in the working world do? Did you think that when you join a law firm, you have all the assistants to help you? I can only say, in many cases, you wish! That imagination of yours applies after 5 years of opening your own firm or after you’ve been promoted to a more senior level. Even then you still need to read, analyse and digest the information before you present a case in court.

What’s that you say? You don’t want to be a practicing lawyer? No problem, the rule still applies. You still need to prepare reports, white paper, presentations etc.

Let’s get back to earth, shall we, O Young Angkasawan. 😉

Practical Tips for LAW558

My partner, Azira Aziz, and I concluded our LRM as a course last Tuesday. It was a presentation of your proposal before Prof. Dr. Shad Saleem Faruqi and Ms. Siti Hafsyah Idris. All in less than 5 minutes. In a way, our LRM was smooth sailing. We had our topics approved way before anyone else had. Our proposal paper met no objections and our presentation was 5 minutes or so compared to the rest. All on time, on schedule and no hassle.

“Favouritism” you may cry out? No, I do not think so. Here’s our little secret: we consult the lecturers over and over again – from topic and title selection, to proposal draft to presentation.

We began our project during the mid term holidays in February. We met Prof. Dr. Shad to resolve a dilemma: we had to equal practical and viable area of research. Our learned professor resolved the matter by selecting a more feasible area. We (read: Azira) explained thoroughly on what we intended to cover in this research. There and then we got our topics – which was approved. Simple, isn’t it? And the meeting was less than 1/2 hour!

Then it came to the write up of the proposal paper. We divided up the task. After much procrastination from yours truly, we finally completed our paper – one week before the submission date. You might be wondering, “Was it really procrastination?” Well, relatively speaking, it was. 😉 Anyway, we submitted the draft for proofreading to Ms. Hafsyah. Remember, this is a draft. We ratified the problems, ironed out the creases and the following day, which was the submission day, we submitted our proposal. It was, again, accepted.

The last hurdle is actually the presentation of the research proposal.

Here, my copywriting/commercial writing skills and expertise came out. Can you guess how many slides, including the ‘front page’ and the ‘thank you’ slides, we have? All in all, 12 slides only. My partner kept on saying ‘sempoi giler presentation kita!‘ (trans: “our presentation is very simple!”). Also, I slashed the number of words on a slide. In one particular slide, we included  diagram! Simple. Not an essay

See With Your Mind, Read Between the Lines

In an ideal world, you can expect all relevant details and information to be disclosed to you. Be it from your client, employer or the exam papers. Also, in an ideal world, you can expect the cases and problems you need to address are all clear cut and purely academic. But in that ideal world, wouldn’t it be boring? As a Law student, a skill which you should acquire in 3-4 years of legal education and training is this: reading between the lines.

Reading between the lines?

Imagine you, as a client, talking to your lawyer. Would you actually disclosed every detail? Example you’re asking for divorce. Will you tell what on earth were you doing with the other person – who is not your spouse – in your birthday suit at 3 am in the morning at a cheap hotel? Maybe your account is not meant to conceal things. Another probability is that you would forget certain details. Perhaps you were drugged before you were dragged to the hotel.

Sometimes, the things that aren’t explicitly mentioned are critical to your case. These small insignificant details, you thought, would have no effect. Sorry to say, in many a times, your overlooking of these information could result in your own loss.

Let’s be practical on the subject, shall we?

Case law. You are asked to read Donoghue v Stevenson or Re Webster. Next tutorial class, you are to present it and submit a report. Alternatively, you were assigned Stephen Kalong Ningkan and are asked to prepare a case brief/report. What do you do? How can you tell an argument was from the respondent and the other from the appellant?

If you’ve opened up a case law, you would know that the details therein are: case name, keywords, summary, judgment. Yes, the lawyers representing each party are named as well. But you do not have ‘arguments by the plaintiff’ or ‘defendant’s submission’. Yes, again, some judges highlight who said what. But what if they did not?

Here’s where your ‘reading between the lines’ skill comes in.

Another illustration, a statute. A particular clause says so-so-and-so are prohibited? But does it also mean that not-so-and-so are all permitted? In your first year, you would be exposed to the rules of interpretation (i.e. Golden rule, mischief rule, literal rule, hybrid, etc). But the apply these you still need to know: what is this person not telling me but can be deduced – not assumed – from this scenario?

Why not ‘assumed’? A fatal mistake many do over and over again is defending their case based on pure assumption. When you deduce, you have a concrete evidence based on the scenario. When you guess, you are shooting in the dark. Personally, I don’t want my lawyer to d the later. It is a sure way to fail.

Another thing you should consider are the circumstances surrounding the problem. Remember, honour killing may be illegal and inhumane in some parts of the world. In a different part, it may be the best option. In cases such as defamation, you cannot assume that the parties involved grew up and are trained in England or Kuala Lumpur. Your clients can be from Ulu Kapit and Ulu Baram for all we know in real life. These circumstantial informations should be deduced and be used.

Now, let’s talk exam papers, shall we?

In the Finals, the information provided in the question paper are all relevant and meant to show something. Use it, manipulate it but do not resort to assumption unless you can deduce. Deduce, again, a la Sherlock Holmes. 😉 No one said the Legal Studies/Law programme was an easy, trouble free programme. :-p

Did you know that extra marks are allocated if you can detect the ‘hidden’ issues? Consult your lecturer or tutor for more details. Each subject has different approaches.

When you’re in UiTM, you will do the Literature Appreciation subject in your 4th Semester. Use this opportunity to be critical of literature. It’s a good foundation to reading between the lines.

ILAC 101

You’re attending the first seminar on contract law. In that 2 hour session, the lecturer went on and on. She finishes it with giving out questions before leaving the hall. How do you answer it?

Despite many undertakings, as far as my personal experience is concerned, many law students’ organisation or the Student Representative Council Secretariat fail to conduct study skills and exposures, especially for the freshman. I’m not bashing them, it’s just my finding. The scenario is so for UiTM Kedah and UiTM Malaysia. The only programme organised would be a motivational course for students who failed to obtain a CGPA of 2.50. I personally doubt that they cover study skills and techniques tailored especially for law students. Probably they don’t have the time or funding.

I hope that this entry would shed some light for freshmen and freshwomen – and their seniors who still search for the golden formula.

ILAC? What’s that?

Law school formulated a simple guide in tackling law papers and assignment. This method have been used over and over again by both students and practicing professionals. If you open up case law, even judges follow this guide. It’s called ILAC, or IPAC. ILAC stands for:

• Issue;
• Law/Principle;
• Application or Arguments; and
• Conclusion.

The rationale is so your essay or answer would be written in a logical manner. ILAC also helps you to make sure you’re using the right application and arguments.  Besides helping you, ILAC assists the examiner on how to award and distribute marks. This makes the manipulation of ILAC even more critical.

ILAC in Action

It’s one thing to just talk about the benefits and rationale of ILAC. It’s a whole new thing when it comes to application. Let’s see briefly how law students and practitioners apply this basic guideline.

A. Issue
Every question must have an issue. If not, there would not be a reason to write and answer, will there? In normal college writing, the issue is an equivalent to you thesis statement. It serves as an anchor and guide on tackling the problem. There is no point to discuss everything you learned in Contract Law just to answer a problem on validity of acceptance. You don’t have time, knowledge or even energy to do so. An issue usually is only one sentence. E.g. Whether the contract formed between A and B, who is a minor, valid.

While an issue usually one sentence, a question can have more than one. If it’s a contract law exam, besides the capability to enter into contract, the scenario could include terms and conditions, consideration etc. Be mindful of the fact that there can be “hidden” issues besides the obvious. The ability to identify these underlying issues distinguishes an average student and an A student – to quote my former Contracts Law I lecturer.

In terms of mark, Issue generally bears 1 mark. This varies according to institutions and type of question.

B. Law or Principles

The next thing you need to do is to identify the appropriate legislation or case law. Example in Land Law, we have the National Land Code to prescribe the alienation process, powers of the State Authority and rights of the proprietor. Where relevant, you’ll need to cite the related provisions. Even for a comprehensive Code (as opposed to “Act”, “Enactment” or “Ordinance”), there are situations where the National Land Code is silent. Example what constitutes fixtures and what are chattels? To determine this, we have incorporated common law to fill in the lacuna. Be warned, though: Many examiners would not award marks for “copy and paste” of statutory provisions. They expect you to paraphrase it without changing the gist and critical details.

A factor which distinguishes law students and laymen are cases. Anyone can buy a statute from the bookstores. You, me, the guy in the house next door, the lady walking past you. Anyone. Our knowledge and understanding of case law sets us apart. Case law, examples Holland v Hodgeson and Teh Bee v. K. Maruthamuthu, act as authorities to justify our claim and rebut our adversary’s where statutory provisions are ambiguous or silent. But this is not the means to an end. Rather, it serves as a foundation of the end.

More marks are allocated in this section compared to Issue and Conclusion. Be reasonable when your citing statutes and cases. Remember that you can list all the cases under the sun, but the examiner can only give so much marks.

C. Application and Arguements

What distinguishes an A student from a regular student is the way one argue in one’s answer script. This have been told to us by our lecturers over and over again. Even in real life, cases are won and lost because of arguments presented in court. For those of you who intend to depart from precedent, here’s your chance. Most examiners expect you to justify your stand and apply all the law/principles you cited earlier. For the purpose of academics, you are expected to follow the precedent. But you are also given room to criticize a judgment.

To apply, you really have to read the cases themselves. Not a summary you can get from the text book. Only by reading the judgment itself can you for yourself see why this judge adopted this decision and all other issues raised. Unfortunately for us, there is no shortcut.

Remember that your arguments should be in logical order. While it’s easier and more tempting to adopt whatever notes you read, it’s just good enough for you to pass. But memorizers isn’t what the legal profession needs. We need more law students, lawyers and judges who have substance as well. This is where, to quote my former Administrative Law lecturer, UiTM and MU law students are different: the later have more substance compared to the former. And I personally agree.

D. Conclusion

As with any novel and essays, you must end your answer with a conclusion. To do this, you simply take the all the issues you mentioned and reword it based on the direction you took. Example: The contract between A and B is void because… .

Your conclusion carries about one mark or so each.

Use ILAC Tailored to Your Needs

Remember that what I’ve shared with you is merely the tip of an iceberg. As you progress, you will be able to manipulate this formula to create that A essay. There are, however, many other issues which I have not raised here. Examples: how do you apply when there are multiple issues? What language should you use when writing the essay?

As time progress, I’ll shed some light here. I would like to recommend the book Exam Skills for Law Students 2nd Edition by Marry McVea & Peter Cumper. It’s printed by Oxford University Press. I got my copy from Kinokuniya KLCC for RM59.90. For UiTM Law Students, I saw a copy of the same book in PTAR2.

For now, happy writing and good luck.