Post #13: PART I: All About Mooting (Plus Tips, Tricks, and What to Expect!)
Finally, we get to one of my favourite topics in law school - Mooting!
A moot is an exercise replicating appellate level advocacy in a mock courtroom (as opposed to a mock trial, which replications trial advocacy). Appellate advocacy does not involve witnesses, or pieces of evidence (which occurs at the trial level). Generally, you are appealing an error of law, or fact, or both. Mooting is a wonderful way for you to discover and develop your affinity for oral advocacy. My favourite aspect of law school has been mooting, and I know each and every one of you will gain something valuable from the experience!
In first year, mooting at Windsor Law is on a pass/fail/pass with distinction basis. If you get up in front of the judges and try your best, you will pass. My job is to share with you my tips, tricks, and thoughts on being a great advocate, and someone who can pass with distinction. Although I do have mooting experience, consider my tips as simply guidance of one person, and not the golden rule book to mooting. These tips are based off of my own experience & coaching. When in doubt, ask your Professor!
Please do not copy the submissions or examples listed here. These examples are to give you ideas, and suggestions, not for copying or extensive appropriation.
Without further delay ...
Fariya's Guide to Mooting Successfully - Part I - Writing An Introduction to Your Submissions
(Please note these comments are geared towards Canadian mooting, but are still relevant for the Dual JD students!)
Overview
The introduction is a very important part of your submissions - especially for the first speaker for each side. The introduction allows you to focus the court on the major points of your case, to develop a strong roadmap and overview, and to set the stage for the next 20-30 minutes of submissions.
What are the elements of a good introduction? Consider my tips and tricks!
The Introduction - First Appellant or First Respondent
Beginning your Introduction
The introduction is particularly important for the individuals opening the arguments on each side. The introduction allows you to focus the judges on what you feel are the salient aspects of a case. An introduction (as the first person speaking) generally contains the following points:
- A greeting
- Your name and your counsel's name
- Who you represent
Example: "Good Afternoon Justices (yes, this is a Canadian Term, I tend to hear "Your Justice" in American terms);
My name is Fariya Walji, and along with my co-counsel Jane Doe, I represent the Appellant/Respondent in this matter."
The introduction (when you are the first person speaking) is often followed by a brief policy argument. A policy argument is something that reminds the court who the case impacts, and how. Its about the societal interest in the case. Why does this case matter? How the case will affect people? etc. A policy argument is not mandatory. Don't feel obligated to include one. If you choose to include one, keep is short, and to the point.
Example: This case is not about whether individuals choose to marry, or not to marry. This case, is about recognizing all family units as equal under the law, and deserving of the same rights and protections, regardless of their marital status".
Detailing Your Side's Arguments in Brief
The first counsel should then proceed with a brief overview of the entire side's arguments, and clarification of who will be covering each argument. For example:
The Appellant will be making 2 submissions today. I will be addressing the first submission, and my co-counsel will be addressing the second submission.
The first submission is: Office B engaged in an unreasonable search and seizure, contrary to section 8 of the Canadian Charter of Rights and Freedoms.
The second submission is: The evidence obtained as a result of this unreasonable search should be excluded pursuant to section 24(4) of the Charter.
Submissions should be short, straight-forward and to the point. Avoid double negatives, long-winded statements, and submissions that don't touch at the overall heart of your argument. In this brief overview, the simpler your submissions are, the better.
Detailing Your Arguments - The Focus of Your Submissions
Once your overall Appellant/Respondent position is outlined, go into your own submission, and outline your submissions, that you alone will be covering. For example:
In support of the Appellant's position that a section 8 violation occurred, I will be making three submissions [you can add a broad paragraph reference here, such as: These submissions can be found at paragraphs 5 to 29 of the Appellant/Respondent factum]:
1. First, The Accused had a subjective expectation of privacy
2. Second, The subjective expectation of privacy was objectively reasonable
3. Third or Lastly, the arresting office engaged in a search that was both egregious and a flagrant disregard of the accused's Charter rights.
Again, keep these submissions as short and simple as possible. The more straightforward and clear they are, the more persuasive the arguments will be.
Paragraph references should be reserved when you actually want the judges to go to, and look at that paragraph. As a result, I tend to suggest to students that when they actually move to their submission after their opening, they direct judges to the factum. For example, after explaining your third submission:
Beginning with my first submission, found at paragraph 5. The accused had a subjective expectation of privacy in his home. According to....
When you send the judges to a point in your factum, wait for them to turn to that page. Look at the judges, wait until they move to the relevant point in your argument, and then proceed with your oral submissions.
What if you are the second person to speak? How should you introduce yourself?
The Introduction - Second Appellant or Second Respondent
Beginning your Introduction
As the second person to speak, your introduction is a little different. Some key elements are the same, generally containing the following points:
- A greeting
- Your name
- Your submission
You can generally jump into your submissions a lot quicker! You don't need to recite the facts, or introduce your side at all. You don't need a policy argument in your intro, though you may need one in your conclusion.
Example: Good Afternoon Justices,
My name is Jane Doe. It is the Respondent's position that the evidence seized in violation of the Charter should be excluded pursuant to section 24(2)l. In support of this position, I will be making three submissions in line with three-prong test under R v Grant:
1. The Charter infringing conduct was serious;
2. The impact of the breach on the Charter-protected interest of the accused was severe;
3. Society has an interest in the adjudication of this case.
Once again, short, straight-forward, punchy submissions. No long winding-statements, or unclear double negatives or word repetitions. There is SO much power in short submissions.
I do hope this helps with drafting your introductions! I will have several more tips about writing submissions and conclusions, practicing your arguments, and what to expect in a moot! Please see PART II on writing submissions, Part III on writing conclusions, PART IV for tips on strong oration & answering questions from the bench, and PART V for frequently asked questions & other tips!
~ Fariya Walji
2013-2014 PMP Student Coordinator
* Disclaimer: The above post is entirely of my own opinion, and was not counseled by Windsor Law or reflective of the thoughts, opinions, or attitudes of any other Windsor law staff or students. Individuals reading this post should read it only as a personal opinion piece, not as academic or career advice.