Post #16: All About Mooting - Part IV - Oration & Handling Questions from the Bench

Post #16: PART IV: All About Mooting - Part IV - Oration & Handling Questions from the Bench

So, we have covered a bit about writing introductions for submissions, under PART I of the Mooting Guide, and about writing submissions under PART II of the Mooting Guide, and PART III, on writing conclusions. 

PART IV aims to address the question - what makes a great orator? What types of questions should I expect from the judges?

Lets jump right in!

 

Fariya's Guide to Mooting Successfully - Part IV - Developing Oration Skills & Answering Questions

Overview

All the work you do in your factum and writing submissions comes down to the oration component of the moot. How do you prepare for your moot?

First, read this post in conjunction PART V on FAQ & Tips. Between the two posts, most of your questions should be answered.

Once you have your submission written out, how do you prepare? Part of the preparation is, I think, in the organization of your binder. Part of the preparation is in the practice, and anticipating questions. 

 

How to Organize Your Moot Binder

Font & Spacing of Submissions

First, when I print out my submissions, I print them out in large font - somewhere between size 18 and 22. The large font makes the submissions easy to see, which is important when your binder may on a podium that is lower than your normal reading level.

Second, when I space my submissions, they are often double or triple spaced, and I only print submissions on half a space, printed single-sided. The double-spacing makes it much, much easier to read your submissions when on the podium. Single spaced makes your binder looks like a big chunk of words. I only print submission on half a page, which is my secret trick (well, not so much anymore because I am sharing it with you! :)) and single-sided to limit my head movements. If I am reading all the way down to the bottom of the page, you can see my head moving all the way down, and double-sided means my head is constantly flicking left to right.  If I only print on half the page, I can actually see the page without moving my head, or by moving it very little. Printing single-sided is also beneficial because the ink on the previous page doesn't bleed into or shadow the page you are currently reading. 

Third, I begin each submission on a new page. I find that if a judge is asking me a lot of questions on submission 2, that, through my answers, covers all of the submission, I might just skip directly to submission 3. As a result, I want that on a clearly identifiable new page. I often write a bolded heading

 Example: Submission THREE - Marginalization

 

Headers & Slashes to encourage slower pace

On the top of every page in my submissions, I write or type the words "SLOW DOWN, STAY CALM" in big letters. Being reminded every time I turn a page to slow down and to be calm is extremely helpful. In addition, I add bright red slashes (/) in my sentences, to encourage pauses.

For example:

The unconstitutionality of this legislation / must be consider in conjunction with several factors. / First, / the legislation is over broad. / All individuals / living off the avails of prostitution / are subject to criminal penalty. /This includes the spouses /and children /of prostitutes. 

Figuring out where to put the slashes is up to you. I sometimes read submissions multiple times, out loud , to see if the pauses are natural. It is completely up to you whether or not to use them, but i find slashes to be a great binder to tell me to breath and slow down. 

 

Arrange your Moot Binder with Crucial Documents 

I like to organize my binder, and tab it accordingly:

TAB 1: Introduction & Submissions - I also add small durable tabs on the pages of each new submission

TAB 2: Conclusion - I like to keep this a separate tab, because when I run out of time, I want to be able to flip to this very quickly, instead of frantically searching my binder.

TAB 3: Questions & Answers - Answers to questions I have prepared in advance

TAB 4: Cases - a list of the cases I am using in my oral submissions & factum, with the year, court level, quotes I have referenced, and a very brief summary of the facts

TAB 5: Appellant Factum (sometimes judges reference your or the other side's factum)

TAB 6: Respondent Factum (sometimes judges reference your or the other side's factum)

TAB 7: Blank paper, or unused lined paper, which I can use to make notes on during the moot.

By having these documents right in my binder, I don't have to shuffle or scramble for papers to address the judges's questions. I have all the resources, clearly organized, to answer the questions head-on. 

 

 

How to Prepare for Questions

The trickiest parts of mooting, I think, come in the questions. Having had the opportunity to watch and participate in several competitive moots, I tend to find that the people who are the best on questions, are very well-prepared. They make it look easy - but in actuality, a lot of hard work goes into being that prepared. I would encourage you to read PART V of the Mooting Guide on preparing for questions, but lets go through the types of typical questions to expect.

The very best advice I can give you when answering questions is: Listen carefully to the question, pause, gather your thoughts, and then answer in the most coherent and succinct way as possible. I often see students respond too quickly, and end up rambling for 20 seconds before they gather their thoughts and give a proper answer. 

* Please note: The titles of these questions are part of the "Fariya-ictionary" (also a made up term) - these are not universal terms. 

 

"The One Right Answer" Question

There are some simple questions mooters are expected to know the answer to, but you may not be expecting them. 

Examples of such questions are:

• What was the year/holding/facts/court level of the case you just cited?
• Can you point to where in your factum I can find information about the academic article you just cited?

Both of these questions are ones that require you to know your submissions, and know the cases you are citing. It is like a job interview -  if you got a question from a prospective employer about your resume, you shouldn't be surprised. You know your resume inside out, and, in the same you should know your factum and the cases you cite, and be able to answer in a straightforward manner. But sometimes, it can catch you off-guard to have a judge ask "what were the facts of that case?" when you were only citing it for the ratio.

What if I don't know the answer to the "One Right Answer" questions? 

Simple questions are hard to skirt around, if you don't know the answer. This type of question requires either a correct answer, or an "I don't know". I would recommend, instead of "I don't know" to try the following:

• Justice, I am unable to provide the court with the facts of the case at this time, but I would like to direct the court as to why I raised the case. Case XYZ is important because....

When I am really in a pickle, I sometimes like to use a cheeky answer like "Justice, I am unable to answer your question at this time, but I will ask my law student to research the answer. I would, however, like to direct the court to the ratio of the case, and why I raised it..."

 

"The Leading Question" (contrasted with the "Softball" Question)

In my opinion, the leading question comes to you as a summary or reiteration by the judges, but is often the opposite of what you are saying. Consider the following examples:

• Counsel, am I correct in saying that, based on points a, b, and c, your position is that the search and seizure of evidence was appropriate?
• Counsel, you friends have argued that the best way to address the section 8 violation is to consider... do you agree?
• Counsel, do you agree that the test should only have two main components?

Although these questions may be the opposite of what you are saying in your submissions, they are not necessarily adversarial. Sometimes the questions might be leading you in the wrong direction, and you should be mindful of that - but the judges may be asking you such clarification on your position. You should treat all questions, even those that appear to be adversarial, as simply clarification questions. It will help your demeanor if you stop thinking about the judges as trying to trick you. 

How do I address "Leading Questions"?

The best way to address these questions, in my opinion, is to start your answer with a simple "Yes or No". By stating your conclusion first, you indicate to the court where your explanation is going, and it helps ground your answer (and remind you of what your point is). Any follow-up should be clear and to the point. See below:  

• Question: Counsel, am I correct in saying that, based on points x, b, and c, your position is that the search and seizure of evidence was appropriate?
• Answer: No, Justice, it is the appellant's position that when you consider b, c, and d, in totality, the search and seizure was appropriate. Factor x does not factor into this analysis. 

• Question: Counsel, you friends have argued that the best way to address the section 8 violation is to consider...do you agree?
• Answer: Yes Chief Justice, The Respondent agrees with our friends that the correct test for a section 8 violation is....however, the Respondent do not support conclusion that a violation occurred.

• Question: Counsel, do you agree that the test should only have two main components?
• Answer: No, Justices,The Respondent submits that three elements of the section 24(2) test are necessary to properly determine if evidence should be excluded. 

• Question: Counsel, isn't it true the office only completed of the 5 of 10 training courses?
• Answer: Yes Justices, that is correct, however, it is the Respondent's position that completion of the 5 courses gives the officer at sufficient minimum training. 

Notice my answers are short, to the point, and beginning with my conclusion. Also notice I never use the words "I", "we", "I feel", etc. See PART V on FAQ & Tips for more etiquette points. 

 

The "Softball Question"

The softball question is the question a judge throws to you to build up your confidence, or assisting you with your point. A lot of students mistaken softball questions with leading questions, because they don't really expect the judges to be asking them something that requires as simple "Yes Justice". Softball questions often follow Leading questions, which confuses students.

• Question: Counsel, am I correct in saying that, based on points x, b, and c, your position is that the search and seizure of evidence was appropriate?
• Answer: No, Justice, it is the appellant's position that when you consider b, c, and d, in totality, the search and seizure was appropriate. Factor x does not factor into this analysis. ​

• Follow up Question: So counsel, then we should not consider Factor x, and as per your co-counsel's submission, we should not consider section y, as relevant to this case. Is that correct?
• Answer: Yes Justice, that is correct. (If you really want to add to the answer: Neither x nor Y should be considered by the court as relevant to the test). 

How to distinguish between "Softball" & "Leading" Questions?

The best way to distinguish between the two types of questions (Leading questions verses Softball questions) is to stop, pause, and think to yourself "is the judge correctly or incorrectly summarizing my position?" If it is correct, consider it a softball question and answer very simply with a "Yes Justices" or "No Justices". 

 

The "Hypothetical Question"

The hypothetical question often scares students. They have been warned so many times against it, that they tend to reject every hypothetical the judge poses. Hypothetical questions are questions where the judge asks you about an alternate scenario, and whether that should change your position. Consider some of the following examples.

• Counsel, suppose a larger quantity of marijuana was found in the accused car?
• Counsel, what if the woman had paid money to the undercover officer as a hit man instead just contacting him?

The trick with hypothetical questions is to stop and think about if you can answer the question, or if the question is leading you down the "garden path". Sometimes you can work a hypothetical in your favour. If you aren't sure, or if the answer isn't in your favour, a safe answer is "each case is assessed on a case-by-case basis, and I am unable to speculate on it". Remember to always bring your answer make to your submissions and/or mantra. 

• Counsel, suppose a larger quantity of marijuana was found in the accused car?
• Answer: Justices, a change in fact like that would have to be assessed on a case-by-case basis. However, the Appellant submits that regardless of the amount of drugs seized, a section 8 violation still occurred. 

• Counsel, what if the woman had also bought a gun for the undercover officer posing as a hit man instead just contacting him?
• Answer: The Respondent submits that the purchase of a gun might be further evidence of a crime, but would have to be assessed in context of the factors of that case. In this case, however, we can see the commission of the officer is sufficient to demonstrate intention to contract for murder. 

• Counsel, what if the accused at expressed more skepticism about having Ms. Bond drive him home after the party?
• Answers: Justices, in cases like X, we see that additional skepticism factors into the analysis and the trial judge would have to consider that. 

• Counsel, you argue that separating the mother and baby imposes psychological harm to both individuals. But we separate mother animals and baby animals all the time. 
• Answers: Justices, the treatment of animals and humans are distinct. I cannot comment on practices with animals. I would point out, however, that the psychological harm to mothers and children have been documented in psychological studies. If I can turn you to page 3 of the Appellant factum, to the study by....

See how I am not instantly saying "The Appellant cannot speculate about that"? I am considering the hypothetical, deferring if necessary, and bringing back the bench back to my point. If you are unable to speculate on a hypothetical (in other words, if there is no case or study to support your position on the hypothetical), I recommend you defer the question by saying that case should be addressed on its own merits. 

 

The "Long-Winded" Question 

Once in a while, judges ask very long-winded questions. Often, they are formulating their question as s they are speaking, and this makes their questions somewhat rambled and convoluted. Often, they don't even end in a question, or they have multiple questions. Examples include:

• Counsel, I'm not sure I agree with your submissions regarding the accused's concrete and reliable plan. He decided to drive his car to a party, then he talked to someone about driving him and then changed his mine. A reliable plan should be more concrete than that? And then he didn't actually ask his friend to drive when they left the party.

This type of question is tricky, because you kind of have to infer what the judge is asking. Sometimes, clarification is necessary. You can clarify the judges question by saying:

• Justice, could you clarify your question?
• Justice, would I be correct in saying you would like the Appellant's position on the reliability of the plan?

By clarifying the question, you are: (i) ensuring you aren't wasting valuable time answering a question the judge didn't intend to ask; (ii) forcing the judge to convert their question into a Simple or Leading question, which is clearer. While there is always a danger the judge will ramble for another minute, I'd much rather have the judge ramble than me. 

 

The Multi-part Question

The multipart question has a similar feel to the long-winded question. It comes in two forms - when either one judge asks multiple questions, or the judges pick up on each other's questions. Sometimes they will indicate that they are asking multiple questions, and sometimes they won't.

• Counsel, wasn't the accused so drunk by that point that he couldn't have made a reliable and concrete plan? And wasn't that plan diminished because the accused proceeded to sit in the front of his car instead of connecting with his designated driver?
• Counsel, I have two questions - first, who is responsible for implementing the mother-child program in prisons, and second, why should be considering the mother-child program when there is no comparable father-child program?

In both cases (where the parts of the question are identified by the judge, or not), I would recommend breaking up your answer. 

• Justice, I can answer your question in two parts: First...second....

Bring a pen up with you, so you can write down what the multi-part question components may be. 

 

I still have more to say on questions, but I am aiming to get Part V up, tonight. Will come back to add more types of questions! I hope this helps! 

 

* 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.

 

~ Fariya Walji