bench book THE
BENCHBOOK QUT LAW SOCIETY 2020
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THE BENCH BOOK
RECONCILIATION.................................3 ACKNOWLEDGEMENTS........................4 INTRODUCTION...................................5 QUTLS COMPETITIONS PORTFOLIO......6 2020 COMPETITIONS CALENDAR.........7 ABOUT THE 2020 COMPETITIONS........8 BREAKING DOWN THE COMPS............12 NEGOTIATION..................12 MOOTING....................... 14 CLIENT INTERVIEW..........25
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R E C O N C I L I AT I O N
The QUT Law Society respectfully acknowledges the traditional custodians of the land upon which it works, the Turrbal and Jagera people, and pays its respects to Elders past and present. We recognise the contributions that First Nations people make to society, and celebrate First Nations success. The QUT Law Society is committed to inclusion, reconciliation and consultation to ensure the future of Australia is one where First Nations people are afforded equal opportunity. The QUT Law Society demonstrates its commitment to reconciliation through numerous events and programs facilitated throughout the year. There are many upcoming opportunities to acknowledge First Nations history, both within the QUT community and beyond. In 2020, the QUT Law Society welcomes commencing First Nations students, and wish you every success in your studies and beyond.
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ACKNOWLEDGEMENTS We’d like to say thank you to everyone who has contributed to this guide and to the competitions community at QUT Law. Especially to all of the: • Previous QUTLS Competitions and Moot Club personnel who have given up large portions of their time and sanity to facilitate the competitions community; • The veteren student competitors who not only judge and write problems, but also discuss rule changes and encourage others to get involved; • The generous academics who offer their expertise in judging and writing, and passionately promote the QUTLS competitions;
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• The vested (and very busy) professionals who offer their valuable time after work to share their experience and ensure the next generation of legal professionals receive sound feedback; and • The competitors who actively seek the challenge and consistently impress with their knowledge, creativity and dedication to bettering themselves and contributing to the QUT Law community. We would also like to thank our friends at Clayton Utz for sponsoring this guide and supporting the development of QUT Law Students.
INTRODUCTION Benchbook – ‘bentʃ bʊk’ – [ noun ] A book providing an overview of legal procedure for a judge.
We are very excited to bring you the first QUT Law Society Competition Benchbook. This ‘benchbook’ will act as a guide for every competition facilitated by the QUT Law Society (“QUTLS”). From client interviewing and negotiating, to a head-to-head tort moot, the QUTLS Benchbook features insider information and helpful resources to steer you in the right direction. This is the perfect place to start for first timers or the perfect refresher for those wanting to dust off their competition boots. This year, the QUTLS Competitions Portfolio will bring you a great line-up of competitions that will complement the law school academic program. You will develop your practical legal skills, prepare for the real world, test your academic rigor, build confidence, make friends along the way and get feedback from
legal professionals and experienced students. In 2020, the Competitions Team will be running six internal competitions. The QUTLS also facilitates and sponsors external competitors to represent us in the Grudge Moot (against UQ), the Queensland Intervarsity Law Competitions (QILC) and the Australian Law Societies Association (ALSA) Competitions. The QUTLS Competition Rules, example competition problems, and example submissions can be found on the QUTLS website under the Competitions tab. Be sure to keep across the LAW_MOOTING: Mooting Program Community tab on Blackboard for the university’s external opportunities.
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QUTLS COMPETITION PORTFOLIO
The Comps team will be working behind the scenes to create a range of opportunities for you to engage, learn, have fun and kick goals. We’re super friendly, so please feel free to visit us in the QUTLS Office in C Block or shoot us an email at competitions@qutlawsociety.com if you have any questions (we obviously can’t answer substantive questions about the problems!). If you haven’t already, make sure to follow the QUT Law Society Facebook page to keep up with the news of upcoming competitions and how to register.
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COMPETITIONS CALENDAR Semester One Negotiation - Week 4 First Year Moot - Week 8 Open Moot – Week 10
Semester Two Grudge Moot – Week 1 Junior Moot – Week 4 Client Interview – Week 8 QILC – Mid-Semester Break
Holidays June/July holidays Accessibility Moot ALSA
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ABOUT THE COMPETITIONS NEGOTIATION The Negotiation is suited to students of all years and, for many, their first experience in the legal competitions arena. Teams of two compete against each other as ‘solicitors’ advocating for their assigned client on opposing sides of the negotiation. The softskills associated with negotiating (like the ability to actively listen and compromise) are emphasised throughout the law degree in units like Dispute Resolution and Contracts. Just like in the real world, the purpose of the Negotiation is to represent the interests of your respective client while coming to a mutually beneficial outcome for all parties.
as legal professionals and to reflect on how much my negotiation skills developed between the rounds of the competition. But beyond this, entering this competition allowed me to meet a wider range of students in the QUT Law Society and develop meaningful friendships with my fellow students which I will continue to cherish.” - Morgan Lynch, QUT PLT Negotiation Competition 2019
STUDENT TESTIMONIAL “Participating in the 2019 QUT PLT Negotiation Competition in Semester 1, 2019 provided me with an invaluable opportunity to practise applying my teamwork and legal advocacy skills outside the classroom. I felt empowered to experiment with my negotiation style and take risks in a way I don’t always feel comfortable doing during assessed negotiations in my law units. It was extremely helpful to receive personalised, detailed feedback from a range of past competitors as well 8
The layout of a typical Negotiation.
MOOTING The QUTLS mooting program is a great place to start testing your legal knowledge and skills. Never mooted before? Don’t worry. Whether it is your first year or your last, there are a number of moots you can participate in. Moots are similar to debating but with a legal focus. It is a head-to-head contest of legal arguments in a mock courtroom setting. Working in teams of two or three people, competitors get the opportunity to research and formulate legal arguments by applying the legal principles they have learned in their degree to the facts of the problem. Competitors then submit their arguments to a bench of judges. This year’s line-up consists of the First Year Moot, Open Moot, Junior Moot, and for the first time, an Accessibility Online Moot.
The layout of a typical Moot. 9
CLIENT INTERVIEW One of the most underrated, but incredibly important, skills in legal practice is the ability to interview clients effectively. Not only is it vital to build rapport with a client, but it can also often be difficult to determine the legal nature of a problem – especially when it is a problem that the client themselves cannot identify (which is why they come to you, the ‘lawyer’). The Client Interview allows competitors to work in teams of two to interview a ‘client’, asking them the right questions in order to identify the problems associated and provide preliminary advice.
Overall, I’m so glad I embraced this opportunity to apply my legal skills and knowledge in a more practical way. I now feel more prepared to tackle the type of work I’m likely to perform in my future legal career.” - Morgan Lynch, MinterEllison Client Interview Competition 2019
STUDENT TESTIMONIAL “The 2019 MinterEllison Client Interview Competition was my first experience conducting a client interview in the role of a lawyer. Preparing for this competition gave me an incentive to conduct in-depth research into the legal interview process as well as the various areas of law which my partner and I speculated may arise in the interview based on the brief memo we received beforehand. As a competitor in the Grand Final, I enjoyed attending the MinterEllison offices and networking with their lawyers. This was also one of the first times I had ever stepped foot in a law firm so being there helped me picture myself working in the legal industry in the future. 10
The layout of a typical Client Interview.
VOLUNTEERING All of these competitions require volunteers! If you want to see what competitions are about (from the best seat in the house), volunteer as bailiff for a moot or as a client to be interviewed! You get to interact with the judges, watch competitors compete and get the scoop on how competitions are run. Get in touch at competitions@ qutlawsociety.com if you would like to sign-up to the volunteer pool.
EXTERNAL COMPETITIONS Competing internally opens up a number of opportunities to engage with other students, professionals, and academics from other universities. If you succeed in the First Year Moot, you will have the chance to represent QUT in the annual UQ vs QUT Grudge Moot in Semester 2, 2020. Other competitions may even give you the chance to represent the QUTLS at QILC or ALSA. Internal competitions are also seen as an important stepping stone for students wanting to represent the university in domestic and international competitions like the Jessup Moot held in Washington D.C. or the Kirby Contract Law Moot held in Melbourne.
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BREAKING DOWN
THE COMPS
NEGOTIATION WHAT IS A NEGOTIATION? Essentially, it’s a discussion between two teams of dispute resolution practitioners who are each negotiating on behalf of their client on opposite sides of a dispute. Negotiations are immensely important in legal practice as 95 per cent of all disputes are solved outside of litigation using alternative dispute resolution (ADR) processes (and negotiation is a popular form of ADR). In practice, being able to effectively negotiate a commercial dispute may save a client millions of dollars in legal fees, and years in time that would have otherwise been caught up in the courts. As opposed to litigation, negotiation is not a winner-takes-all exercise. The point of negotiation is that compromises often mean that both parties get at least some of what they want, and that they may be able to retain a valuable relationship that would have otherwise been destroyed. Negotiators need to ensure that they put their client’s interests first in any negotiated agreements they make. As such, mastering the art of negotiation is a skillset that many law firms and companies look out for and greatly appreciate. 12
WHY NEGOTIATION? Negotiation is an integral part of legal interactions between parties, and is a very common undertaking between clients, companies, employees and/or governments. Negotiation is required in almost all aspects of life, whether in the legal profession, a personal relationship or in purchasing a new car, it assists in reaching a mutually beneficial outcome for all parties.
PREPARING FOR A NEGOTIATION The negotiation is one of the least preparation-intensive competitions of the year and is a great way to build your experience straight off the mark. Prep work requires a thorough understanding of both the shared and secret facts, as well as your client’s needs, goals, and interests (note: these are not the same thing). Think BATNA and WATNA. What are the concessions your client is willing to make and absolutely cannot agree with? Start by reading over the problem, your secret facts and develop a game plan with your teammate.
VISUAL KEY REMINDER B – Best A – Alternative T – to N – Negotiated A – Agreement
W – Worst A – Alternative T – to N – Negotiated A – Agreement
THE FORMAT OF A NEGOTIATION COMPETITION In contrast to mooting, the structure of a negotiation is fairly informal. It’ll most likely run like this: 1. Once the draw is organised, you will be allocated a client to represent. 2. The Competitions Team will email you the general facts and the secret facts that pertain ONLY to your client (your opposition will have their own secret facts). You are not allowed to share or exchange secret facts with anyone outside of your team. Doing so will disqualify you from the competition. 3. If you’re new to Negotiation, or want to brush up on your skills, you should attend the workshop held by the Moot Club prior to the preliminary rounds.
party’s secret facts printed. You should also have an idea of what you want to achieve for your client. You are welcome to bring notes, research and agendas that you and your teammate have put together prior to the competition. 6. When you enter the room, there will be 1-3 (friendly) judges waiting for you. The judges will range from previous students and competition whizzes to barristers, solicitors, and alternative dispute resolution practitioners. 7. You will be in charge from here. The judges will only intervene to let you know when your 30 minutes are almost up, they are essentially spectators that will be judging your performance. 8. Once time is up, each team will spend five minutes reflecting with the judges. You should discuss what you did well, what could be improved, and what you gained from the experience 9. The judges will provide feedback for you and your teammate, then you can go home and await the results!
4. You and your teammate should discuss your game plan – develop an agenda and figure out your positions, tactics and possibly a secret language. 5. You should arrive around 15 minutes early with the general facts and your 13
STEPS TO CONSIDER Step 1: Preparation (know the facts, create your BATNA and WATNA and read the rules!) Step 2: Opening (soft goal-oriented, problem solving) Step 3: Send signals about relationship and priority information (trust building) Step 4: Gathering information
INSIDE SCOOP FROM THE JUDGES
Be prepared;
Speak at a slower pace than feels natural; Have a logical agenda; Listen to the other side; Reframe the discussion often; Think of creative ideas for outcomes; Work as a team - don’t be afraid to have a piece of paper on which you communicate during the negotiation;
Step 5: Agenda setting (probe for hidden agendas)
You can take time for a ‘caucus’ meeting outside the room to discuss your strategy, but make sure you take it at an appropriate time;
Step 6: Discovering interests (reality testing)
Know what leverage you hold over the other side and use that to your client’s advantage;
Step 7: Generating realistic options
Understand what leverage the other side holds over you and how they might use it to their advantage;
Step 8: Problem-solving and bargaining Step 9: Outcome and documentation Step 10: Reflection
Don’t focus too much on being amicable with your opposing counsel. Remember, your client is paying your fees! Enjoy the experience.
If you have completed Dispute Resolution and/or Contract Law, it is recommended that you review negotiation theory and principles so you can apply your knowledge in the practical setting that is the QUTLS Negotiation Competition!
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MOOTING WHAT IS MOOTING?
Mooting is often described as ‘legal debating’, but in actuality it is so much more than that. Moots involve the preparation of legal arguments for a hypothetical problem, which is then presented in front of a panel of judges.
WHY MOOT?
Mooting offers students a rare opportunity to think deeply about legal problems. Undergraduate students are often asked to recall the law, but are rarely asked to reflect on what the law could and should be, while making reference to precedent. On another level, mooting is immensely helpful in assisting students to develop their skills in legal research, argument development and presentation, clear communication, public speaking and advocacy. It also presents an opportunity for students to develop their teamwork skills, as students are forced to work collaboratively with people who may have different approaches to problem-solving.
WHAT DOES MOOTING INVOLVE?
QUTLS mooting often involves a problem that is an appeal to the Queensland Court of Appeal from a decision of the Queensland Supreme or District Court. Teams are usually comprised of two or three students, with two acting as ‘speakers’ (referred to as senior and junior counsel or cocounsel) and the other competitor acting as an optional ‘researcher’. One team will appear for the appellant, and the other team will appear for the respondent.
Teams will receive a moot problem, which is a description of the hypothetical case they must moot on. The problem may comprise of the ‘transcript’ of the original judgment, which an appeal must be brought upon. Alternatively, it might describe the facts of the original case and a summary of the judgment from the first instance. The end of the problem will inform competitors as to what part of the judgement each team will be appealing or responding to. The problem may ask for one team to appeal, and the other to respond to the appeal, or both teams may be appealing against different parts of the judgment. In this case, the respondent would be bringing a “crossappeal” and may also be referred to as the “cross-appellant”. Following the release of the problem, teams will research and prepare written submissions. The legal arguments will then be presented in front of a panel of one to three judges, simulating an appeal hearing. During each oral submission, the judges will interrupt to ask questions for a variety of reasons. Following the moot, the judges will deliberate and announce a winner of the moot. It is important to note the distinction between the winner of the moot and the winner of the case. In contrast to real life, the purpose of a moot is not to win the case, as the problem may be written in a way that favours one side. The winner of the moot will be the team with the strongest advocacy skill and presentation. This is assessed by the strength of their legal arguments (written and oral), analysis, research, preparation and skills in persuasion. 15
OPPORTUNITIES TO MOOT IN 2020 Internal: » First Year Moot » Open Moot » Junior Moot » Online Moot External: » Administrative Appeals Tribunal Moot » The Hon. Micharl Kirby Contract Law Moot » The Jessup International Law Moot Court Competition » Oxford Intellectual Property Moot » International Criminal Court Moot » Gibbs Constitution Moot » VIS Moot » QUT Torts Moot » Ian Fletcher Insolvency Moot » And many others! Interested? Check out these next steps!
HOW TO PREPARE FOR A MOOT? First Steps Registration: The first step of a competition is putting yourself out there and registering. The QUT Law Society’s internal competitions allow students to register as a team or as a single competitor. Single competitors are paired with other single competitors so as to create opportunities for students to grow their networks and facilitate higher participation in competitions. 16
The Rules: While competition rules for internal and external competitions can be similar, it is important to read each competition’s rules word for word, as they can contain important distinctions which can make or break a team. Some key rules to note will be: » Written submission guidelines (including page numbers, font and spacing). » Submission deadlines. » Time limits for rounds (how long each team is able to present their case). » Whether rebuttal and surrebuttal (response to the opposing party’s rebuttal) will be permitted. The Problem: Depending on the competition, the problem may be released weeks before the beginning of preliminary rounds, or much closer to the date of competition. It is important to stay up to date with where and when the competition information will become available, so that you are able to begin preparation for the competition as soon as possible. The problem is the most important element of the moot. It contains all of the facts you are bound to follow. Just as a barrister is expected to know their client brief, it is important that you know the problem back-to-front. This will involve reading the problem carefully and re-reading it in its entirety several times. When presenting oral submissions, the judges will expect
you to be able to reference the page, paragraph and line of the facts. A good tip when reading the problem for the first time is to try and keep an open mind. Think about the problem generally, rather than from the perspective of the appellant or respondent. This will help to inform your rebuttal and surrebuttal, and it will generally assist in strengthening your argument overall. Plus, if you advance to the semi-final or final, you will likely change sides as unlike in the Client Interview and Negotiation, the problem stays the same throughout the competition. Most moot problems will contain several grounds of appeal and cross-appeal, which will guide your research and submissions focus.
GENERAL MOOTING RULES Regardless of rules imposed upon a mooting competition, there are several mooting rules that must be followed except in situations where competitions expressly state that they diverge from the competition rules. Inferences – You are only permitted to make inferences which are logical extensions of the facts. For example, where the problem indicates that a person fell from the tenth floor of a building and the hit the ground, it is a logical extension that the height of the fall was high enough to cause injury. It cannot be inferred that the person fell from a different floor level. Inferences cannot make up facts or cite exhibits
that are not part of the problem. Facts – The facts given in the problem are the material facts of the case. No new facts can be introduced. For example, if your problem considers whether a farmer is entitled to compensation due to an injury caused by negligence, your job will likely be to advocate on the negligence issue – not to calculate the damages based on the most recent figures from the RBA. This is the general rule, and any exception should be clearly noted in the problem.
RESEARCH Prior to beginning research, it is important to divide the work between team members. It is necessary as both speaking team members must make oral submissions, and it is more efficient if all members are assisting in preparation. However, despite division of work, it is important that all team members have familiarity with all aspects of the problem. While time constraints may limit the ability of each team member to understand the detail behind each submission, it is important to understand your teammate’s argument in case a judge asks you a question related to their submissions. It is important to remember in mooting, the purpose is not to find the ‘answer’ to the problem. Mooting requires competitors to develop strong arguments that are able to persuade 17
the judges that your submissions are the ‘answer’. This mindset must be taken from the outset, as it will help to inform your research and your future career in law. Research is an ongoing process. It begins with the release of the problem and continues throughout the competition until the competition is complete. The amount of research that can be completed on a problem is never-ending, and as such it is possible you will still find holes in your argument following the finalisation of your written submissions. The more research that is completed at the beginning of the process the better the position you will find yourself in come competition day. Secondary sources – An excellent starting point for research. They provide broad summaries of areas of law and principles which may be key to your understanding of the case. It is particularly useful to view secondary resources, such as textbooks or encyclopedias, where the problem involves an area of law you are not familiar with. It must be noted however, that secondary sources are not binding upon the court and cannot (except in very rare circumstances) be cited as authoritative. Therefore, even where a textbook statement may support your argument perfectly, primary sources must be used as an authority when submitting an oral argument or written submission. 18
Judges will often ask competitors to engage in critical analysis of primary materials during oral submissions, which will not be possible unless you have engaged with the materials on a critical level. Journal articles are secondary sources and should be pinpointed as they can be of great assistance in moot preparation. Moots are often based on questionable or contentious areas of law which are topical and are subsequently large points of discussion for journal articles. Journal articles can provide resources for commentary on recent cases or topical issues, but may also include case notes which can assist in the interpretation of cases. However, journal articles should never replace the process of reading the complete text of a judgement. Primary Sources – Primary sources that are binding (i.e. from a superior court) can be the most important materials in your case. Internal moots will often provide a list of primary sources as a starting point, but this list is not to be relied upon as an exhaustive list unless explicitly stated. In contrast, the problem may state that the list of sources is closed, and as such written and oral submissions must only refer to these sources. The significance of critical thinking in reading cases cannot be stressed enough. It is not sufficient to reply with a textbook definition which states
what a case signifies. You must be able to read the case and pinpoint the lines that support your submissions.
FORMING SUBMISSIONS The process of forming your submission varies with each competitor. We can provide you with recommendations and the best practices on researching, writing and practising your oral submissions, but it is with each competition that you participate in that the experience you gain will enable you to form submissions with ease.
WRITTEN SUBMISSIONS It is important to understand that mooting is advocating. You are not presenting essays on the law. You are providing arguments as to why your submissions advance your client’s case. You are attempting to communicate your written arguments persuasively and concisely. A great place to start with written submissions is to replicate the IRAC or ISAAC methods developed in your first-year law units. Visual Guide Reminder I – Issue S – State the law A – Arguments A – Apply the law C – Conclusion
I – Issue R – Rule A – Application C – Conclusion
You should slightly modify these methods in order to suit the mooting style. Instead of stating the issue, you should reframe the issue from the perspective of your argument. For example: ‘the learned trial judge erred in finding that…’ In order to be as concise as possible (which will be necessary when you are required to stick to a strict word or page limit), the steps of IRAC or ISAAC can be combined. For example: “an obligation of good faith cannot be implied into the contract to give it business efficacy because it does not contain necessary clear expression and would contradict clause 12.” This sentence combines all the elements of the IRAC/ISAAC approach into one concise statement.
ORAL SUBMISSIONS Once you have completed your written submissions, you will be required to give oral submissions at the preliminary rounds. QUT Law Society competitions usually involve a preliminary round, semi-final round and grand final depending on the performance of teams in preliminary rounds. As always, check the rules for the particular competition you will be competing in.
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TERMINOLOGY Senior Counsel In mooting, the Senior Counsel speaks first. Outside of mooting, a senior counsel is one who has attained the rank of Queen’s Counsel (QC), also known as ‘making silk’. Junior Counsel In mooting, the Junior Counsel speaks second. Outside of mooting, a junior counsel is any counsel who has not made silk. The Bench The judges presiding over the moot. The Presiding Judge The judge sitting in the middle. Your Honour The way to address an individual judge. Your Honours The way to address the bench, or multiple judges. Appellant The side that is bringing the appeal. Respondent The side against whom the appeal is being brought. How the Court is Constituted A reference to the court in a case and who sat on it. If you refer to a case, you may be asked how the court was constituted to test your knowledge. 20
You need to respond by stating the court and who the judges were. Coram Another term for how the court was constituted. My Learned Friend/s The way to refer to your opponents. My Learned Senior/Junior One way to refer to your team member. My Learned Co-Counsel Another way to refer to your team member.
APPEARANCES The moot begins when the bailiff says, “Silence. All rise.” and the judges enter the room. The bailiff will then call the case, for example: “The matter of ABC Pty Ltd v Smith for appeal”. The judges will then call for appearances. If the judges are already in the room, they might simply call for appearances to begin the moot. When the judges call for appearances, the Senior counsel for the Appellant should first deliver the appearance for themselves and their co-counsel, such as: “May it please the Court, my name is Smith [spell your name, S-M-I-T-H] initials AB and I appear with Ms Jones, initials CD for the appellant ABC Pty Ltd. I will speak for 10 minutes; Ms Jones will speak for 8 minutes and we
reserve 2 minutes for rebuttal.” The Senior Counsel for the Appellant will return to their place The Senior Counsel for the Respondent will then deliver the appearance for their side, using the same form. They will then return to their place. The Senior Counsel for the Appellant will return to the lectern then wait for the judge/judges approval (usually they will say to begin, or offer a slight nod) before beginning their submissions. All appearances and submissions are to be delivered from the centre lectern where possible.
DIVISION OF SPEAKING Similar to written submissions, it is important that the oral submissions are divided evenly so as to ensure efficient work order in your teams. In order to perform to the highest standard, it is recommended that the division of arguments is the same for the written and oral submissions.
ORDER OF PROCEEDINGS
will give their submissions 6. The appellant team will deliver rebuttal (if permitted by the rules) (only one speaker) 7. The respondent will deliver surrebuttal (if permitted by the rules) (only one speaker)
BEGINNING SUBMISSIONS
A conventional method of commencing submissions is outlining what submissions you will be making. A conventional opening might begin as follows: “Your Honours, the appellant/ respondent will make four submissions this evening. First, [state submission]. Second, [state submission]. Third, [state submission]. Fourth, [state submission]. I will be addressing submissions one and two and my learned junior will be addressing submissions three and four.” This style of introduction has the advantage of making the submissions very clear and easy to follow. Similarly to the appearance, you want to deliver the opening fluently and without notes. It should be delivered at a deliberately slow pace, forcing the bench to pay attention to you. Remember to speak clearly and with confidence!
1. Senior counsel for each side gives their appearances 2. Senior counsel for the appellant will give their submissions 3. Junior counsel for the appellant will give their submissions 4. Senior counsel for the respondent will give their submissions 5. Junior counsel for the respondent 21
AFTER THE OPENING After the opening you should proceed to your first submission. It is best to begin by briefly restating it and then moving to the arguments in support of that submission. You should take into account the following tips: 1. Be Persuasive – While you should be following your outline, and you should not simply restate your submissions. Your oral submissions are used to explain your case in a persuasive manner. Remember: the judges already have a copy of your written submission! 2. Be flexible – Be ready for the bench to ask questions which may change the course of your argument. You will have to adapt your argument on the spot. If you simply decline to engage with the judges and continue with your rigid structure, then you may upset the bench. 3. Signpost – Clearly state what your new argument or submission is about so that your submissions are easy to follow.
QUESTIONS The way you answer questions is very important. You should welcome the opportunity to answer questions, as it gives you: » » » 22
The opportunity to address any concerns of the bench; An insight into what they think of your arguments; and A chance to demonstrate your knowledge and preparation.
GENERAL TIPS FOR ANSWERING QUESTIONS »
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Listen very carefully to the question. If necessary, write down a couple of notes while it is being asked (but maintain eye contact with the bench). Answer the question that is being asked, not the question you would have liked they had asked. Never interrupt or talk over a judge. Think about what is being asked. Don’t be afraid to take a couple of seconds to think about your answer. Do not mislead the court. If you do not know the answer, do not simply make it up; say “I cannot assist the bench on that matter/with that.” While this may indicate a lack of preparation, it is always preferable to guessing or lying. If you are asked multiple questions, answer each question in turn. It is appropriate to say “If I may answer Your Honour’s question first, and then address Your Honour’s question second (indicating each judge who asked the question respectively).
PREPARING FOR ORAL SUBMISSIONS You should prepare for your oral submissions by practising over and over again. Constant practice is the way to reduce your dependence upon a script and it will help you develop sufficient familiarity with your submissions so that you can present in a conversational
style. While QUT Law Society does not allow outside assistance (such as coaching), it is important to practise in front of your team members and also ask each other questions. Do not allow outside assistance (such as coaching), it is important to practise in front of your team members and also ask each other questions.
USING NOTES You should not prepare a speech. Instead, you should look to prepare bullet points that summarise the points you are trying to make within each submission.
CITATIONS You must always use the most authoritative citation. In CaseBase, the case will have a list of citations under the case name. The citation furthest to the left is the most authoritative. Generally, a reported version of a case will be preferred to an unreported version. Also, it is preferred that you rely on the authorised reports of the court, such as the reports of the High Courts of Australia, as opposed to unauthorised reports such as the Australian Law Reports. Citations should always pinpoint the exact passage you are relying on.
OPPONENT’S SUBMISSIONS You will receive your opponent’s written submissions usually a few hours before you present your oral submissions. Don’t panic! You should try your best to be familiar with their submissions and begin thinking of ways to counter their arguments. You should also ensure that you are familiar with every authority cited by your opponents.
REBUTTAL & SURREBUTTAL If you are acting for the appellant, in your rebuttal you will need to reply to the points that the respondent made in their submissions. If you are acting for the respondent, you will need to confine your reply to the points the appellant raised in their rebuttal.
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Written Citation
Oral Citation
Strong v Woolworths (2012) 246 CLR 182
Strong and Woolworths Limited, a 2012 case reported in volume 246 of the Commonwealth Law Reports beginning at page 182.
Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 80
Smith and Body Corporate for Professional Suites Community Title Scheme 14487, a 2013 decision of the Queensland Court of Appeal, decision number 80 of that year.
R v Loveridge (2011) 220 A Crim R 82
The Crown (or the Queen) against Loveridge, a 2011 case reported in volume 220 of the Australian Criminal Reports beginning at page 82.
Civil Liability Act 2003 (Qld)
The Civil Liability Act 2003, a Queensland Act.
You should prepare your reply while your opponent is speaking by writing down points to which you want to reply. Be discrete in doing this. Only the most subtle of whispers will be accepted in a courtroom. You are not permitted to talk with your third teammate acting as instructing solicitor, however, you may swap discrete notes. The most effective reply will deliver one or two selected points to leave a strong and lasting impression with the judges.
FINISHING SUBMISSIONS It is vital to ensure you properly conclude your case, and a good conclusion should include: An accurate summary of your case; A statement of the relief sought by your client; and A gentle invitation to the bench to ask any final questions. 24
A gentle invitation is something like: “Unless I can be of any further assistance, that concludes the appellant’s/respondent’s submissions.”
MOOTING RESOURCES QUTLS MOOT CLUB This club offers various workshops to help refine a student’s mooting skills – check out their Facebook page for upcoming events! QUTLS Moot Club hosts regular sessions on campus to help you prepare for moots, brush up on your skills or test out your academic rigour in a casual environment. The Australian Law Students Association Moot Guide: (http://www.alsa.asn.au/mooting/) is also an excellent mooting guide!
CLIENT INTERVIEW
PREPARING FOR CLIENT INTERVIEW
This competition will occur in Semester 2, 2020 and is a fantastic competition to sink your teeth into to test your communication skills.
Usually on the day of competition you will receive a memo with minimal information about a client that would like to meet you and discuss a legal issue. The memo will usually contain some (possibly one or two) clues to the area of law to be covered.
WHAT IS A CLIENT INTERVIEW?
A Client Interview is a private discussion between a client and a legal practitioner whereby facts and information surrounding a case or dispute can be clarified or elaborated upon. Client Interviews ensure that the legal practitioner has the most accurate and relevant information regarding their case and can make an educated and informed decision for action. Client Interviews involve a series of open questions and closed questions. The former encourages a narrative from the client, to allow them to freely describe their thoughts, while the latter solicit simple answers such as yes/no, where the direction of conversation is controlled by the interviewer. Used in conjunction at relevant points, the interviewer’s goal is to get the client to produce acute and vital information that will give them the ‘whole story’ and provide real-world solutions and advice.
The best method of preparation for a client interview is to understand the client. A majority of the time, the client will not have any education or awareness of law, and this requires selective conversational styles. Avoid using legal rhetoric and terminology to prevent confusion with the client. Be clear and concise, choosing when and where to use open and closed questions. Practice asking your partner questions and prepare for how you might react if the client becomes angry or upset. Remember, you want to be a realworld lawyer that helps your real-world clients!
WHY CLIENT INTERVIEWING? Client Interviews are a necessary part of practicing law and require developed skills to gain the most information from clients. Rarely will clients have thorough legal knowledge or the ability to relate past events or experiences to legal standards or guidelines. It is critical to become comfortable with engaging members of the public in order to establish possible legal actions. 25
Client Interviews also offer the ability to gain hands on experience with the tasks undertaken by legal practitioners without the pressure imposed by other adversarial based competitions. Client Interviews focus on the relationship between the interviewer and the client and emphasise interpersonal communication rather than litigationbased skills.
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possible problem and area of law that may be touched upon – this is where your legal research skills come in handy. Have an extremely broad outlook and be prepared for almost anything by creating a “cheat sheet” for every potential area of law. Cover any and all possibilities! Final tip: don’t try to give technical advice to the client.
TIPS FROM ZANE JHETAM, RUNNER UP OF THE 2018 CLIENT INTERVIEW »
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Make sure you are familiar with the room you will be competing in as its very awkward taking in a client and not knowing the layout of the place you will be interviewing them in. Prepare a run-sheet or checklist fitting on one A4 page containing all the critical parts necessary to the interview. Signpost to the client what will happen and let them tell their story (this allows you and your partner to know where you and your partner are at in the interview). Identify each partner’s strengths: allocating these strengths helps give you both structure and flow to your communication. On the day of the competition, meet up an hour before the problem is released in order to prepare. Once the problem gets released – sit down and brainstorm with your partner every single
Zane Jhetam, Former Vice President of the QUTLS.
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QUT LAW SOCIETY HOW TO GET IN TOUCH WITH US OPENING HOURS:
FIND QUTLS:
Tues - Thurs 10am - 2pm
C Block, Level 4, Room 02
Wed 5:30pm - 7:30pm
2 George Street
Sat 10am - 12pm
Brisbane QLD 4000
(DURING THE TEACHING PERIOD OF SEMESTER)
CONTACT QUTLS: Director Email: director.competitions@qutlawsociety.com Competitions Email: competitions@qutlawsociety.com General Enquiries: secretary@qutlawsociety.com
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