THE BENCHBOOK
Reconciliation 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 2021, 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; ● 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 King & Wood Mallesons for sponsoring this guide and supporting the development of QUT Law Students.
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Contents Introduction ……………………………………………………………………………………………………………1 The Competitions Portfolio of the QUTLS ………………………………………………...………..2 Internal Competitions ……………..……………………………………………………………………..……..3 External Competitions ………………………………………………………………………..………………….5 QUTLS Moot Club …………………………………………………………………………………………...……….7 Competitions Calendar ……………………………………………………………………………….………….8 A Guide to Mooting ………………………………………………………………………………………..……….9 A Guide to Client Interviewing ………………………………………………………………………..…..14 A Guide to Negotiation …………………………………………………………………………...……………16 Competition Opportunities ………………………………………………………………………...……….18 Other Ways to Get Involved……………………………………………………………………………….…18 Competition Terminology ………………………………………………………………………………...….19
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Introduction Benchbook – ‘bentʃ bʊk’ – [ noun ] A book providing an overview of legal procedure for a judge.
We are excited to bring you the QUT Law Society Competition Benchbook. This benchbook will act as a guide for every competition facilitated by the QUT Law Society. This is the perfect place to start for first timers or those looking 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 2021, the Competitions Team will be running eight 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 QUT’s external opportunities.
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The Competitions Portfolios of the QUTLS QUTLS Internal Competitions
The QUTLS internal competitions portfolio organises a multitude of competitions that can be participated in by any QUT Law students. Students with any level of experience can participate in Negotiations, Client Interviews, as well as a variety of Moots. To top it off, performing well in internal competitions can act as a fantastic steppingstone to representing QUT in external competitions.
QUTLS External Competitions
External Competitions are a fantastic way for skilled competitors to battle with other law students from a multitude of universities across the nation and the globe. The external competitions portfolio oversees the participation of QUT Law students in well established, nationally and internationally recognised legal competitions, such as the Queensland Intervarsity Law Competitions and
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Australian Law Students Association Competitions. Participating in external competitions give students the opportunity to network with students, professionals and academics from other universities, and even other countries. Expanding your skills and network, all the while representing QUT in exciting competitions? Yes please!
Moot Club
The QUTLS Moot Club hosts regular workshops, as well as formal and informal networking events. Our Moot Clubs are non-competitive competitions held approximately three times per semester. Its an opportunity to learn how to Moot or brush up on your skills ahead of a competition. At the beginning of each Moot Club there will be a ‘How To Moot’ session so no prior experience is needed. So come along, make some new friends, get some free dinner, and learn how to Moot!
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Internal Competitions Negotiation
Getting involved in negotiation is an accessible way for students to dip their toes into the deep pool that is competitions. In Negotiations, teams of two students act as solicitors, representing the interests of their client. The goal is for both parties to reach a mutually beneficial decision. Negotiation competitions assist students in strengthening their active listening, communication and teamwork skills. Negotiation is suited to all law students - from those who have their sights set on joining the Bar, to those who don’t plan to enter the legal profession at all. The skills involved in negotiation are completely essential and transferable to all careers and facets of professional and personal life.
Client Interview Building trust and rapport with a client is one of the most essential aspects of a lawyer’s profession. Getting involved in Client Interview competitions teaches students the art of asking the right questions, and how to genuinely connect with a client. Students can also expect to improve their legal research and problem solving skills, as they grapple with determining the important legal issues rising out of a complex factual scenario.
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Mooting Surprisingly, public speaking + a mock courtroom + a judge ≠ scary! Mooting is something that all law students can actively participate in, no matter what level of prior experience they possess. Mooting involves two teams of two to three students (commonly an ‘appellant’ and
‘respondent’
team)
formulating
written arguments on behalf of their client in response to a legal problem, and
presenting
them
in
a
mock
courtroom to a judge/s. Getting involved in mooting allows students to boost their legal research skills, whilst gaining confidence in oral advocacy. A passion for mooting may open up new career paths that students may not have considered before, such as joining the Bar or a career in litigation.
Witness Examination If “True Crime” is your favourite Netflix genre, listen up! Witness examination competitions are a great way to get a taste of a career involving trial experience and evidence, as the problem questions commonly focus upon areas of criminal law. In these competitions, students learn how to question a witness and learn the professional etiquette needed to interact with members of the Court, while applying their knowledge of the rules of evidence and procedure.
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External Competitions What are External Competitions? If you enjoy competing internally, consider applying for one of the many external competitions offered by both the QUT Law Faculty and the QUT Law Society! External competitions are a challenging but rewarding opportunity to extend yourself beyond internals and compete with students across both Australia and the globe.
1. Networking Participating in external competitions opens up numerous opportunities to engage with academics, legal practitioners and students from across Australia. You’ll get the opportunity to show off your legal advocacy skills in addition to receiving feedback on how you can improve and make yourself a better advocate.
2. Learning
We compete in a number of external competitions, ranging from the Queensland Intervarsity Law Competitions (QILC) to the Hon Michael Kirby Contract Law Moot. Particular external competitions are consistently based on a single area of law. For example, if you really enjoyed LLB203 Constitutional Law, the Gibbs Moot, held by the University of Melbourne, is a prestigious national constitutional law moot that you could apply for. Other events such as QILC include a range of topics and also incorporate mooting, negotiation, witness examination as well as client interview teams.
Representing QUT and competing in external competitions allows you to gain a unique amount of knowledge in your chosen area of law. Mooting competitions involve drafting of written memoranda exploring the applicability of relevant law to a particular set of facts. This enables you to gain a really nuanced working knowledge of that area, which is later tested and augmented during the oral rounds in front of experienced legal practitioners. Other types of competition will also improve your legal knowledge as well as your communication and many other soft skills essential to your future success in the legal profession.
Why compete externally?
3. Interests
There are three main reasons you should consider applying for an external moot this year:
As well as gaining substantial expertise, competing in external mooting competitions allows you to determine which areas of law you may wish to pursue following university. 5
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External moots generally enable you to develop more knowledge in a particular area of law than subjects, allowing you to get a better view of which appeal to you most, and an idea of what could be a viable career aspiration.
What is ALSA?
The Australia Law Students Association coordinates several prestigious national competitions each year. The winners of QUTLS internal competitions are often chosen to represent QUT and compete against similarly skilled students from across the country. However, this is not always the case and budding competitors are welcome to participate.
What is QILC? QILC is a great opportunity for budding advocates in Queensland to further develop their legal skills across a range of areas. It is well suited to beginner and experienced competitors and also requires volunteers. There are four competition streams: mooting, negotiation, client interview and witness examination. The competition is a week-long event including many networking and social opportunities with other participating universities (all law schools in Queensland are invited to participate). The grand finals are often hosted in the Supreme Courts and spectators are always encouraged!
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QUTLS Moot Club What is Moot Club?
A Glimpse of 2021…
The QUTLS Moot Club hosts regular workshops, as well as formal and informal networking and celebratory events. Our workshops are held approximately three times per semester, and allow students to practice their written and oral advocacy skills in an informal and encouraging environment. In these workshops, students are given personalised feedback from industry professionals and students who have excelled in past competitions, ranging from negotiations and client interviews to prestigious moots. No level of prior mooting or competitions experience is required, and all law students with an interest in advocacy or litigation are encouraged to attend. Did we mention there will be pizza?
The QUTLS Moot Club is planning an action packed 2021, with a multitude of events that any law student (with any level of mooting experience!) is sure to enjoy. Join us at Welcome to Moot Club, where we kick off the new year with skill development activities, question and answer time, inspiring guest speakers and fabulous food and drinks. And if you love a celebration, make sure to join us at our inaugural Moot Club Dinner, where we will recognise our outstanding competitors of 2021 while enjoying some covetable networking opportunities to boot! Ultimately, our wish for you is that Moot Club will be a place to nurture your passion for advocacy, and bolster your skills in preparation for a rewarding legal career.
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Competitions Calendar Semester 1 Week 3
Moot Club #1
Week 3
Negotiation
Week 6
First Year Moot
Week 7
Moot Club #2
Week 9
Championship Moot
Week 10
Moot Club #3
Mid-year Holidays ● Video Advocacy Competition ● Australia Law Students Association Championship Moot ● Sir Harry Gibbs Constitutional Law Moot ● AAT Mooting Competition ● Kirby Moot ● QUT Torts Moot
Semester 2 Week 2
Moot Club #4
Week 3
Junior Moot
Week 5
Client Interview
Week 6
Moot Club #5
Week 8
Witness Examination
Mid Sem Break
Queensland Intervarsity Law Competitions Essay Competition
Week 10
Moot Club #6
Summer ● ICC Moot ● Oxford IP Moot 8
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A Guide to 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.
What is mooting? Moots are similar to court room advocacy, It is a head-to-head contest of 9 legal arguments in a mock courtroom setting. A moot team will usually be comprised of two students acting as ‘speakers’ one being senior counsel and one junior counsel or they will act as co-counsel. In larger moot competitions there will also be additional team members who will act as researchers. These competitors will submit both written submissions and oral submissions to a bench of judges.
In QUT competitions that moot problem is usually an appeal to the Queensland Court of Appeal from a decision of the Queensland Supreme or District Court. In the moot teams will appear for either the appellant or the respondent. The appellant team will be representing the party appealing the original decision which they would have ‘lost’. The respondent will be representing the party who is challenging this appeal.
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How do I prepare for a moot? 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. Teams will receive a moot problem and be assigned a side (appellant or respondent). This problem 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, the problem might describe the facts of the original case and a summary of the judgment from the first instance. The issues set out at the end of the problem are those which your submissions should focus on, they are useful to base your headings on in your written submissions. 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 “cross- appeal” and may also be referred to as the “cross-appellant”.
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Writing written submissions It is important to understand that mooting is advocating. A great place to start with written submissions is to replicate the ISAAC methods developed in your first-year law units. However instead of stating the issue, you should reframe the issue from the perspective of your argument. In order to be as concise as possible the steps of 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.” You will receive your opponent’s written submissions a few days (or 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.
Answering Questions During your oral submissions you should anticipate the Judge interrupting you with questions. You should welcome the opportunity to answer questions, as it gives you the opportunity to address any concerns of the bench and a chance to demonstrate your knowledge and preparation.
Tips for answering questions: ● Don’t be afraid to take a couple of seconds to think about your ● Answer in 3 stages: First, state yes or no. Second, expand upon your answer. Third, Cite and authority ● Never interrupt or talk over a judge. ● Never try to avoid a question, even if you address that point later in your submissions. You should be flexible and if the Judge would like to move forward and address that area, you must be able to adapt to this.
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Appearances
Typical Moot Layout
The judges will 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.” After this: 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.
Oral Submissions 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. A conventional opening might begin as follows: “Your Honours, the appellant/ respondent will make four submissions this evening. First, [state your submission]. Second, [state your submission]. Third, [state your submission]. Fourth, [state your submission]. I will be addressing submissions one and two and my 12
BENCHBOOK 2021 learned junior will be addressing submissions three and four.” 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!
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. You should prepare your reply while your opponent is speaking by writing down points to which you want to reply. The most effective reply will deliver one or two selected points to leave a strong
and lasting judges.
impression
with
the
Citations When you cite your first case you should cite it with full citations, however after this you may ask the Judge permission to dispense with full citation and refer to cases just by party names. Judges will usually allow you to dispense with full citations, occasionally where leave is requested by the Senior Counsel of the Appellant the judge will grant leave to all competitors. Example of a full citation: Strong v Woolworths (2012) 246 CLR 182 as Strong and Woolworths Limited, a 2012 case reported in volume 246 of the Commonwealth Law Reports beginning at page 182.
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A Guide to Client Interviewing 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.
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.
Why client interviewing?
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
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. 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 litigation-based skills.
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Preparing for a Client Interview 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. 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 real-world lawyer that helps your real-world Clients!
Tips from Zane Jhetam, runner up of the 2018 client interview ● Make sure you are familiar with the room you will be competing in as it's 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. ● Final tip: don’t try to give technical advice to the client. 15
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A Guide to 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 benefit 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.
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. Negotiation skills assist 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.
B – Best
W – Worst
T – to
T – to
A – Alternative
A – Alternative
N – Negotiated
N – Negotiated
A – Agreement
A – Agreement
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.
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The format of a negotiation competition 1. Once the draw is organised, you will be allocated a client to represent and 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. 2. You and your teammate should discuss your game plan – develop an agenda and figure out your positions, tactics and possibly a secret language. In preparation (know the facts, Be prepared; create your BATNA and WATNA and read the rules!) 3. You will be in charge from here. The judges will only intervene to let you know when your time is almost up, they are essentially spectators that will be judging your performance. 4. Your negotiation should follow the structure of: Opening (soft goal-oriented, problem solving), Send signals about relationship and priority information (trust building) , Gathering information, probe for hidden agendas, Generating realistic options, Problem solving and bargaining. 5. 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.
Tips for Negotiating: ● Speak at a slower pace than feels natural; ● 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; ● Know what leverage you hold over the other side and use that to your client’s advantage; ● Understand what leverage the other side holds over you and how they might use it to their advantage; ● Don’t focus too much on being amicable with your opposing counsel. Remember, your client is paying your fees! 17
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Competition Opportunities Faculty run competitions: ● Administrative Appeals Tribunal Moot ● Jessup International Law Moot Court Competition ● Ian Fletcher Insolvency Moot ● QUT Torts Moot ● VIS Moot ● Gibbs Constitutional Law Moot ● International Criminal Court Moot ● Oxford International Property Moot
QUTLS run competitions: ● All internal competitions ● Australian Law Students Association (ALSA) Competitions ● Queensland Intervarsity Law Competition (QILC) ● QUTLS x UNSA ICC Moot ● More to come!
Volunteering
to sign-up to the volunteer pool get in touch with competitions@qutlawsociety.com. Join the Competitions portfolios The Internal, external and moot club competitions are all run by the student volunteer teams. If you would like to become involved keep an eye on the QUTLS Facebook Page for the annual election.
Other ways to Get Involved
All of these competitions require volunteers! If you want to see what competitions are 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. If you would like
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Competition 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.
My Learned Senior/Junior One way to refer to your team member.
My Learned Co-Counsel Another way to refer to your team member BATNA Best Alternative to Negotiated Agreement
The Bench The judges presiding over the moot.
WATNA Worst Alternative to Negotiated Agreement
The Presiding Judge The judge sitting in the middle.
Wit Ex Witness Examination
Your Honour/ Honours The way to address an individual judge or judges.
Caucus A break in a negotiation where you and your teammate can discuss the situation.
Appellant The side that is bringing the appeal. Respondent The side against whom the appeal is being brought. My Learned Friend/s The way to refer to your opponents.
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