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!

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