DLSS 2019 MOOT GUIDE
FOREWORD AND THANKS The 2019 Deakin Law Students' Society Moot Guide could not possibly have been completed without the foundation that was laid by the 2018 Competitions Portfolio.
The research conducted by Lisa Mundos, Beau Anfield and Camille Johnstone provided students with a brilliant platform to gain a basic understanding of how the moot process works, and bust many of the myths and fears surrounding competing in a moot. The 2019 Competitions Portfolio have aimed to further build upon the solid foundation created by the 2018
Competitions team. In doing so, we have updated the moot guide to provide students with a complete idea of what to expect when approaching moots at any level. The 2019 Competitions Portfolio, consisting of Julia Mollica as Director and Georgia Gilbert, Stephanie Seviloglou and Tanya Wesseik, would like to thank Casey Guilmartin, Jesse Nygh, Lachlan Morgan and Joel Breckler for their expertise and contributions to the 2019 Moot Guide. Throughout the year, the Deakin Law Students' Society run a number of moots, including the Deakin Moot, for students in their third year and above and the Deakin Junior Moot, for students in their first and second year. Mooting is a brilliant way to put the content that is taught in class into action. Furthermore, the team environment provides students with a fantastic opportunity to meet other likeminded students in their degree.
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DEAKIN LAW STUDENTS' SOCIETY
CONTENTS Foreword and thanks........................................................................1 Mooting Memoirs................................................................................3 Why should I moot?..........................................................................5 The structure of moots....................................................................6 The A-Z of mooting...........................................................................9 Draft your submissions...................................................................8 Questions from the bench............................................................9 The day of the moot.......................................................................10 The moot court...................................................................................11 Mooting etiquette............................................................................12 Mooting dictionary...........................................................................13 Frequently asked questions.......................................................14 Closing notes.......................................................................................15
DEAKIN LAW STUDENTS' SOCIETY
MOOTING MEMOIRS The best advice I’ve ever received is, don’t listen to advice. I’ll clarify. Advice is neither good nor bad. It is helpful or unhelpful. Someone can be correct, but if all it achieves is filling you with self-doubt, its not going to be helpful. Being selective with who you listen to is an important skill.
Casey Guilmartin is one of Deakin's best mooters, finishing 4th in the world in the prestigious Willem C. Vis Moot.
Perspective is what helped me most. Originally, I felt as though I was sitting in front of people ten times smarter than me with an argument I myself didn’t believe in, pitifully asking them to please believe me? It was a complete disaster. I said words in no particular order, then left feeling like my brain had betrayed me. Then someone whose knowledge of the law ends at ‘Judge Judy is boss’ said, "Just imagine them all naked". Helpful. This was very helpful. Maybe slightly inappropriate, but it gave me the space to realise that it wasn’t all so bad and if I messed up - life would go on. Remembering that the people you’re presenting to are living breathing humans will help you be convincing. You can make it irrelevant that your argument is ridiculous - providing you can convince the panel otherwise. History tells us that if you’re skilled enough, you can convince people of the most outrageous things #fyrefestival. I’m not condoning fraud but see if you can muster the self-confidence to convince the people you’re sitting in front of that you know what you’re talking about, and you’re right. I’m making the assumption that as a law student who is doing mooting as a fun activity, you’ve done all the preparation you possibly can. Best of luck!
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MOOTING MEMOIRS Throughout my time at Deakin University, I have been fortunate enough to represent Deakin in various moots, most notable was the 2017 Vis International Commercial Arbitration Moot in Hong Kong and Vienna, then subsequently the 2018 Australian Law School Association Negotiations Competition.
Lachlan Morgan has impressed in both Moots and in Negotiations. His experience in Vis Moot as well as ALSA makes him one of Deakin's brightest talents.
From these particular moots and even the smaller ones that I have taken part of in the past, I can confidently submit that the skills and confidence that one fosters are invaluable. It goes without saying that one of the major skills that one develops is the ability to become a skilled orator who can hold their nerve against any barrage of questioning. Beyond this, I found that these experiences improved several other practical skills that are highly valued in the legal industry. In particular; the ability to efficiently and effectively research the relevant law in a small-time frame, the ability to synthesis large and complex areas of law in to a short, comprehensive and persuasive argument and lastly the ability to work effectively in a collaborative setting.
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SO...WHAT'S A MOOT? A moot is a legal competition that simulates a court case, where students act as the legal parties involved in a dispute and argue why their client should win. This competition is done in pairs, so you will have a partner with you every step of the way during the research and the actual mooting! During your heat, the two of you would face off against another pair in front of a judge.
WHY SHOULD I MOOT? Mooting is one of the fantastic ways students are able to build upon their legal skills within a practical environment. Participation in a moot competition requires legal research, written submissions, oration and legal advocacy all essential skills needed to succeed in the legal profession. Being in law school doesn't mean you are ready to become a lawyer the day you graduate. Participating in mooting competitions provides you with a head-
start to your legal career; having experience in advocacy and litigation is a very favourable trait to possess (and potential lawyers will love seeing this on your CV!). Aside from professional development and growth, mooting offers you a chance to make the most out of your time at university. Getting involved is a great way to maximise your tertiary experience, and a fantastic way to build strong connections and friendships within your cohort. After all, these are the people you will be working with in the future! The DLSS strives to create these opportunities for students to strengthen their mooting skills through a number of challenging and creative moots. After reading our guide and participating in your first moot, the question shouldn't be "why should I moot?" but rather "why shouldn't I moot?".
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THE STRUCTURE OF A MOOT Appearances: The moot will commence with a judge who will ask for appearances from the teams. Senior counsel from each team will stand, with the Applicant to begin and introduce themselves and their Junior counsel. Senior Counsel: After they have given appearances, the plaintiff/ applicant is invited to commence the moot. Senior Counsel should start with "May it please the court" before offering to give a brief recap of the most important facts of the case. The judge may accept or decline this offer. This should then be followed by a brief outline of the submissions to be presented by both Senior and Junior counsel.
Upon the conclusion of their submission, Senior Counsel will conclude with "May it please the court, those are my submissions." Once Senior Counsel is seated Junior Counsel will stand. Junior Counsel: Junior Counsel will begin with "May it please the court". After a brief outline of their submissions, they are to begin their oral arguments. At the end of their submissions, the Junior Counsel will conclude by stating the orders they are seeking. This could be a dismissal or a finding in favour of the applicant/respondent. Junior Counsel should then conclude with "May it please the court, those are our submissions". The team representing the Applicant are first to present their arguments and are followed by the Respondent. The judge or judges will then hand down their decision.
Senior Counsel will then commence their submission.
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SO WHO AM I REPRESENTING? Shortly after the moot signups close, you will receive your brief. Your brief will be labelled 'Applicant' or 'Respondent'.
In C r app iminal la lican w, t t he the pro will be sec call the ut res pon ion and d ent def the end ant.
Applicant: the party who brings the matter to court. Respondent: the party who is defending the matter brought by the applicant in court.
A-Z OF MOOTING Research and analysis of the moot problem is necessary as it begins to shape and create the basis of your submissions (generally three). Based on the party you are representing, you will shape and mould your moot submission according to their desired outcome.
Start by reading the problem two or three times. It's always a good idea to use different coloured highlighters to colourcode your submissions, as it will make it much easier when it comes to formulating your arguments..
A great place to start your research is using your textbooks. Textbooks will often contain many key cases that you will go on to utilise when you form your argument. However, there will often be some issues where further research is needed. Using the Deakin Library website, you can access legal resources such as LexisNexus and Westlaw AU who provide extensive case law and commentary on a wide array of legal commentary. Furthermore, if it's legislation you're after, Austlii will provide you with all the relevant acts. So, now you've done all your research and have planned your arguments. Now it's time to start rehearsing! Not e: i t ide 's als oa res a to you earc do s grea t o h r use oppo into me w s arg ful. Pr ition hat um edi w com ents ctin ill fin g d pet t g itiv ives heir you ea dva nta a ge! PAGE 7
DRAFT YOUR SUBMISSIONS Drafting your submissions is one of the most important steps in the mooting process. As the saying goes, failing to prepare is preparing to fail! Having your submissions set out in a logical, clear and succinct format will allow you to better prepare for your presentation to the moot court. However, figuring out where to start can be a little tricky. If you adhere to the following steps and structure in a similar format, the drafting of submissions will become second nature and you will create an easy guide to follow come mooting day! List your "issues for determination" It's always a great idea to first, at the top of your submission document, list the contentious issues you bring to the court for determination. An example of this could be the following, but this is entirely based on the issues faced by your party in the moot scenario:
1) Whether [insert party name here] has grounds to [take such action] pursuant to [a particular legislation] 2) If there is standing for [insert party name] to have [insert action] based on [insert the contentious actions faced] Your Submissions Your submissions will echo your issues for determination. In other words, your submission is your contention of the issue at hand. For example: If the issue for determination is whether or not your party has standing to compete a specific act based on a fundamental piece of legislation, one of your submissions will be that your party does in fact have standing to compete that specific act, based on the legislation. Your submissions will also have subheadings beneath them, filled with reasons why (and relevant authority) the issues your party faces should be dealt with in you favour. This is where you will show off all your research and provide the judge with all of your hard work and effort!
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QUESTIONS FROM THE BENCH A critical element in scoring well in a moot is your ability to cohesively and concisely answer the judges’ questions. Don’t fret: this is ultimately a task where they will be testing how well you can think on your feet and succinctly apply your legal knowledge. They may ask questions during your submissions or at the end of them. Now, the questions are highly likely to pertain to the following: Case law (e.g. “Why this case in particular?” or “How does this case relate to your client’s?”) Legislation (e.g. “Is there any authority to support that argument?”
DAY OF THE MOOT
ases our c el y , ls s ateria ned coun our m ar to r e b Use y n your le mem e e v r al e m t s r and l, fo h! Ju ctfu se u wis e e o p h y s t if e re ring s u u d s e ndable alway e languag ersta lip t li d o n u p ys and . It is e ma anges nguag ure but la exch r s you pres to that udden empt s t t r a e n will a und is e mak as th l y a ll n a re es! essio scor prof your sound in t c refle
On the day of the moot, make sure you have printed your submissions and arrive at the moot court with plenty of time to spare! When it comes to dress code, pick out the outfit you would wear if you had an interview at your dream law firm - dress to impress! But what happens when you get into the moot court? In the proceeding pages we will outline where to sit, when to stand and what to do. Treat these pages as a checklist and and tick them off as you go through and understand them. Congratulations! You are well on your way to becoming a very successful mooting team!
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THE MOOT COURT
Appellant
Junior Counsel
Senior counsel
If you forge t where to sit, remem ber: Respo ndent right, Senior Couns el centr e
Respondent
Senior counsel
Junior Counsel
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MOOTING ETIQUETTE Mooting is formal in nature, and the behaviour and presentation of competitors should reflect this.
Be confident when speaking! Try to avoid "ums" and "ahs" and make sure you are projecting your voice. Make sure you if the other team is speaking, you are respectful and pay attention to their arguments too. Not only is this polite but it also helps if you need to address any points they made.
It is essential to use respectful language when addressing the judge/s. If you disagree with a judge, always start with "with respect, Your Honour"
Citations: When first citing a case, you should recite the full citation. Then, you may ask the judge "if I may dispense with formal citations". If the judge accepts, you may refer to the case as shorthand. Note when referring to a case "and" should be used rather than "versus". For example if the parties were "Waterson v Baxter", this should be spoken "Waterson and Baxter".
When ending your submission, use a formal conclusion. Make eye contact with the judge before sitting to ensure they have no further questions for you. Ways you might conclude your submissions include "if there are no further questions, that concludes by submission"; "may it please the court" and "if the court pleases, I close my argument".
When citing cases aloud, you should refer to them as "Justice X". The names of judges will be written as Kirby J or Gleeson CJ. This is how they should be cited in your submission, unless the sentence begins with the judge's name. In that case you would write "Justice Gleeson stated at..." instead of "Gleeson J stated at"...
Formal language should be used in the moot court. When making arguments, competitors should say "I submit" instead of "I think/believe".
ss: addre s of e d o M r" honou "your = s Judge "my ate = eam m ague" t r u e Yo d coll learne "my eam = her t t o s d e n " Th d frie learne
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MOOTING DICTIONARY
PHRASE
WHEN TO USE IT
EXAMPLE
Use this phrase before starting any discussion with the court.
"If it pleases the court, your honour, I would like to begin with our first submission..."
"Your honour..."
When addressing the judge/panel of judges
"Certainly your honour..."
"Learned friend"
When referring to the opposing team
"In response to the argument of my learned friend"
"If it pleases the court..."
"We/I submit"
When presenting an argument or answering a question from the bench
You should not say "I think" but rather, "I submit"
"Respectfully"
When addressing the bench/opposing team
"Respectfully, your honour, I disagree that..."
"I will now turn to my first/ second etc submission"
When beginning a new argument
"I will now turn to my first submission..."
"If there are no further questions"
When concluding your oral submissions
"If there are no further questions, that concludes my submissions"
Applicant
The party bringing the appeal
Respondent
The party responding to the appeal
Senior Counsel
The first speaker for your team, who will outline the submissions to come
Junior Counsel
The second speaker for your team
Submissions
The term submissions is synonymous with arguments instead of saying "our first argument is..." you should say "Our first submission is..." PAGE 12
FREQUENTLY ASKED QUESTIONS How do I receive feedback for my moot? Feedback is usually given immediately after the moot by the moot judge. The feedback from your moot judge is extremely valuable as it is usually coming from a senior member of faculty. Who will be my judge? Judges are usually senior members of the law faculty or in some cases a senior law student. What should I do it I can't find a partner? Contact us at the DLSS and we will do our best to match you up with someone else who has yet to find a partner. What if I don't understand what the judge is asking me? Do not hesitate to ask the judge to repeat or rephrase a question if you are struggling to understand what is being asked. You would rather sacrifice a little bit of your pride rather than answer a question incorrectly.
No part ner? No worries ! State this whe n you sign up and we'll do out b est to find you a partner !
What do I do if the judge asks me something off point? Acknowledge the judge's question but at the same time you need to ensure that you don't allow the judge to drag you off your intended point. By saying something along the lines of "I hadn't intended to deal with that point your honour as it is not one of the grounds of appeal, rather..." How long should I be talking for? When you receive your scenario, there will be information regarding how long each party will be able to speak, this should then be split equally between you and your partner. What order do my partner and I speak? The partner who is designated senior counsel speaks first and junior counsel second, however as stated above, there is no real difference between the two and you will speak for equal amounts of time. PAGE 13
FREQUENTLY ASKED QUESTIONS What should I wear? Formal business wear. If you would be comfortable wearing it to an interview at a law firm, then it is perfect for your moot. How much do I need to know about each case I reference? Know the cases you intend on referencing well. In particular, know where the facts are similar to those of your scenario and where they differ. What am I being judged on? You will be judged primarily on your argument. Judges want to see a coherent, logically structured argument supported with persuasive legal authority. Secondly, you will be judged on your counter arguments - how well you rebut the arguments put forth by the opposing counsel, and finally on your court etiquette. How do I formally cite cases and legislation? Example 1: Balfour v Balfour [1919] 2 KB 571 - Balfour and Balfour, nineteen nineteen, volume two, King's Bench division page five hundred and seventy one Example 2: R v Macleod (2001) 52 NSWLR 398 - The Crown and Macleod, two thousand and one, volume fifty two New South Wales Law Reports page three hundred and eighty 9 Example 3: Evidence (Miscellaneous Provisions) Act 1958 (Vic) - The Victorian Evidence Miscellaneous Provisions Act nineteen fifty eight
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CLOSING NOTES This Moot Guide is a revised edition of the 2018 Moot Guide. Several modifications have been made to ensure that the Guide will continue to enable students to compete to the best of their abilities. The 2019 Competitions Portfolio consists of: Julia Mollica - Director Georgia Gilbert - Officer Stephanie Seviloglou - Officer Tanya Wesseik - Officer If you have any queries in regards to mooting or any other competitions run by the Deakin Law Students' Society please contact directorcompetitions@deakinlss.org
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