What is a Moot?

What is a Moot? A moot is a mock appeal. It is a legal argument on a point or points of law before an appeal court – usually the Court of Appeal (Criminal Division) of England and Wales or the Supreme Court of the UK. There are five parties to a moot: Lead counsel for the appellant Junior counsel for the appellant Lead counsel for the respondent Junior counsel for the respondent The Judge There are two parts to a moot. First, there are the written arguments. Second, there is the oral presentation of the arguments. The skeleton argument(s) and bundle submission: The skeleton consists of one, two or three (maximum) submission(s) on the ground of appeal under consideration, and listing the authorities (also a maximum of three plus any ‘court’ authorities) to be relied on to support that submission. The skeleton argument and the bundle of authorities to the oral presentation form an important part of your assessment and both must be submitted in unit 6 (You should also submit a ‘bundle’ with your skeleton argument). Bundles must consist of NO MORE THAN the headnote of any case cited (if it has one, otherwise a brief summary of the facts of the case) plus THE PAGE of the case from which you are quoting with at least the paragraph preceding your quotation and the paragraph after your quotation and the name of the judge (please highlight or use tabs against the actual quotation to be used) or just the SECTION of an Act, or the PAGE of any other source including any academic article/textbook to which you are referring. Please do not overdo the bundles – we do not want pages and pages of source material. Just carefully selected case/section quotations. However, do not underdo them either – we do need the headnote and the page with the quote (from a case) to get an idea of context. Advice on preparation and the written elements Thinking about your moot question It is important in moots that you regard the facts of a problem as sacrosanct. If you try to tinker with them or add new facts to strengthen your client’s case you will be approaching a moot problem in completely the wrong way. Quite apart from the fact that the judge will not permit you to do so (and will penalise you), it almost always means that you have attempted to side-step the legal issue rather than tackle it head on. Remember in a moot only the legal issues raised by the identified grounds of appeal can be argued. There may be other issues that could have been argued but if they are not part of the grounds of appeal the judge will not permit you to argue them. When you are preparing your arguments keep checking back to the moot problem to ensure that you are dealing with the legal issues raised in the grounds of appeal. Preparing your skeleton Preparation can expand to meet the time available! Begin your study by reading, with the greatest care, the facts of the moot problem. (The case currently before a court is referred to by counsel and the judge as ‘the instant case’. So when taking part in a moot you will also refer to the moot case as the ‘instant case’). Do not be surprised if it takes you a little time to determine the issues to be argued. Incidentally, these essential points are almost invariably fewer than an initial analysis suggests. Start your research on the law by going to the recommended textbook. You should identify the primary sources of law mentioned in relation to the moot question set (this may be a case, cases or Acts of Parliament). You should now go online to retrieve the full version of the case(s) or Act (and in respect of Acts of Parliament, you will be able to find the main cases which deal with the sections in the topic). You must make sure you have read the full case(s) of any that you are going to be relying on in the moot itself – your judge is likely to be very familiar with the case/section cited and may ask you questions about those parts not relied on, as well as those parts you quote. Decide what submissions you intend to put to the moot court in support of your client’s case. As you only have a limited time in which to present your oral arguments, you can usually expect to make only one or two submissions with an absolute maximum of three. Remember it is quality not quantity which counts. Do not be surprised if you take some time deciding how best to formulate the submissions which you should make to present your client’s case in the best possible light. A submission SHOULD NOT BE a simple repetition of the ground of appeal but SHOULD state WHY or HOW the ground should be viewed, from the perspective of the party instructing you. It is the ‘because’ to which the ‘why’ is the ground. The word limit for the skeletons is 1,500, which include not only your argument(S), also repeating the ground/stating your name/student number/authorities etc. Choosing your authorities “Authorities” means cases, statutes or other sources (e.g. Law Commission reports, textbooks). Try to find a case that has a quote which supports the proposition of law that you are advancing. Obviously, it is even more helpful to you if that particular quote can be argued to represent the ratio decidendi of the case. It is even better if you can argue that the facts of the ‘instant case’ cannot be distinguished from the facts of the case that you have discovered and the icing on the cake is to further argue that the moot court is bound by that authority (because for example the moot case is in the Court of Appeal and the case that you have found is in the Supreme Court). Often you will not be able to advance the argument in the paragraph above either because the citation that you have is only obiter, or if it is part of the ratio, it is in a case which is lower in the court hierarchy or at the same level and is therefore not binding. In addition, even if the citation were part of the ratio and the case was higher in the court hierarchy often the facts of the ‘instant case’ can be distinguished from it. If you cannot recall the rules of stare decisis, now is the time to refresh your memory. If there is no arguable binding authority then you would submit all or any of the following: (a) that the preponderance of authorities, albeit not binding, are in your favour; (b) that in principle the law is as you assert; (c) that there are strong policy reasons why the law should be as you assert. Make sure that your proposition reflects a well-developed line in argument for the party you are representing i.e. be logical. Your skeleton should list your authorities, stating the name of the case and its citation e.g. Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 and also the page of the report from which you will be quoting. Number of Authorities In addition to any authority cited in the moot problem itself (which is a ‘free’ or ‘court’ authority), a maximum of three per counsel may be cited. You should always use the highest possible report to cite the case from (see criminal law mooting lecture) Any case(s) mentioned in the moot question is ‘free’ i.e. it is a court authority in that it does not count to one of your ‘three’ authorities. If you wish to rely on a direct quotation from the case in your pleadings/your oral presentation, it is good practice to mention the case on your skeletons, and include the relevant extract from the case in your bundle, but it does not count towards your maximum number of authorities. CASES mentioned by the judges in any case you cite on your skeletons (whether at your choosing or a court authority) ARE NOT FREE AUTHORITIES. This is because otherwise you can simply chose one case which includes a review of all the previous case law and cite as many cases as you want. This is against the spirit of a moot, where we assess your ability to select and choose the strongest or most persuasive case from a large potential range. An ACT OF PARLIAMENT counts as ONE authority (so you are free to cite as many sections as you wish from the Act; but please cite the sections by number, don’t just cite the whole Act!). Therefore if an Act is mentioned in the moot question, all sections therein are FREE (but again, please cite the sections by name on your skeletons so we know what we are looking for). Checklist for editing your skeleton arguments: Have you inserted the correct parties’ names? Have you allocated them correctly as appellant/respondent on the facts? Have you got the right ground (if lead, then delete the second ground and vice versa)? Have you correctly identified your own role (lead/junior and appellant/respondent)? Have you drafted a submission (broadly even) within your ground? Have you submitted a submission or two which makes sense in law, grammar; and is it persuasive? Have you used only 3 authorities (excluding free authorities, that is, cases in the moot question or Acts in the moot question)? Have you submitted the bundle of authorities for your oral presentation with you skeleton argument(s)? Have you cited cases correctly – i.e. the Law reports, square/round brackets, citing the highest available report (check Westlaw if unsure) and using neutral citations only where the case is not reported elsewhere?