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Keep Calm Talk Law's Guide to Mooting

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About The Author

Adiba Firmansyah (Regular Writer)

Adiba is currently studying for her LLB at Middlesex University, Dubai. Her main areas of interest are human rights and public law. Outside of the law, Adiba enjoys running, cycling and drawing.

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Deliberation and debate is the way you stir the soul of our democracy.

Jesse Jackson

Rarely encountered by those outside of the law, mooting is nonetheless a hugely significant part of a law degree, lending itself well as a basis for students to develop skills they will use for the rest of their careers. This article provides a step-by-step guide to preparing for a moot and will look at the value of mooting as an extracurricular activity through major regional and international mooting competitions.

What is a moot?

A moot is a mock appeal. This means that the case will be argued in an imaginary Court of Appeal or Supreme Court. Teams of two – performing the roles of Senior and Junior Counsel for both the Appellant and Respondent – deliver their interpretations of an ‘unsettled legal argument’ to a judge through written and oral submissions. 

Example of a moot problem

Demonstrating the characteristics of a typical moot problem, the example below involves a fictitious factual scenario giving rise to a technical legal problem.

IN THE SUPREME COURT

Hurley v Grant

Henrietta Hurley, a film star, wanted a summer house and a swimming pool constructed in her back garden. She put the job out to tender and accepted the offer of Geraldine Grant, a building contractor, who agreed to do the work for £5,000. Both Geraldine and Henrietta knew that this was an unrealistically low price. Geraldine, having completed the summer house and begun construction of the swimming pool, ran out of money and materials for the job. Geraldine told Henrietta that she could not complete the job unless further capital was made available to her. Henrietta, who had arranged a poolside party to which she had invited top film directors from which she hoped to win new roles, was desperate to have the pool completed. She tells Geraldine, “Dahling, you have me over a barrel.”  Henrietta agreed to lend Geraldine £3,000 in order to buy the materials necessary to ensure that the pool was completed, the money to be repaid when Geraldine secured her next contract. The pool was completed; the party was a success and Henrietta was awarded the starring role in the new movie “Four Funerals and a Car Drive.” Henrietta tells Geraldine, “Dahling, you have saved my career. Don’t worry about the £3,000.” Geraldine starts a new  project, whereas Henrietta’s new film is a complete flop. Henrietta sues Geraldine for the £3,000 on either of two grounds:

(i)        As an ordinary debt;

(ii)       The money was extorted by duress.

Divine J. held:

The rule in Pinnel’s Case (1602) 5 Co. Rep 117, was modified by Williams v. Roffey Brothers [1990] 2 WLR 1153, and therefore the completion of Henrietta’s pool was capable of constituting and constitutes a benefit in fact which was sufficient consideration for Henrietta’s payment of the extra £3,000.

Further, Henrietta’s promise to pay £3,000 was not procured by Geraldine’s economic duress, because although Geraldine exerted illegitimate pressure by threatening to break her contract, Henrietta’s will was not overborne by Geraldine’s behaviour. Pao On v. Lau Yiu [1980] AC 614 applied.

The Court of Appeal upheld the decision of Divine J. Henrietta now appeals to the Supreme Court on two grounds:

(i)  Divine J. erred in law in holding that Pinnel’s Case (1602) 5 Co. Rep 117, had been modified by Williams v. Roffey Brothers [1990] 2 WLR 1153

(ii)  It is not a necessary ingredient in an action for the recovery of money paid under economic duress that the payor’s will was overborne. 

The scenario was taken from: www.mootingnet.org.uk

Breaking down a moot problem: read it three times

Allow yourself plenty of time to carry out research for the moot. The main aim of the research will be to find precedent that can be applied to the instant case and that supports any arguments made. However, before delving into the research, it is a good idea to familiarise yourself with the moot problem. This involves reading through the moot problem at least three times.

First, read through the problem carefully and then allow yourself to decide instinctively who should win. No matter how excellent a legal education you have had, you will still instinctively have an opinion of who should win. Everything you do from this point on is to exploit or fight this subjective response.

The first way of doing this is to objectively determine the relevant issues in the moot problem. This means understanding the facts in the problem from the angle of the party you are representing. Most moot problems are written to be balanced. It is also usual for the facts to be ambiguous: this ensures both parties are able to use the same set of facts to argue their distinct positions.

First reading

The first reading should focus on the generalities: the general types of harm suffered by those who are appealing against the decision, the history the parties have with each other, the level of the court the case is heard at, whether this is a civil or criminal case, which are the issues of fact and the issues of law, any authorities the court previously relied on, and the grounds of appeal.

After reading through the whole problem, paying particular attention to the grounds of appeal, think about the problem. For each ground of appeal, note down which facts seem most important and most relevant.

Second reading

The second reading should be done with a pen in hand. The grounds of appeal will give you a general idea of how to write your arguments. It is also important to include the following in your notes:

  • a timeline of every major event that occurred;
  • statements by each party, which will often be raised in legal arguments, statute, or cases mentioned;
  • any laws or agreements more generally; and
  • questions for yourself, such as: is the problem silent on certain topics; are any facts too ambiguous or subject to multiple interpretations?

Third reading

Your third reading will prepare you for research. Therefore, the notes you take should focus on what is needed for the court to give a judgment in your favour: pay attention to specific words or phrases in the grounds of appeal - in the example given above, these would be 'economic duress' and 'will was overborne'. Also, has the judge referred to any specific legislation or cases? Only once you have completed this third reading and you are clear about the moot problem will your preparation for the moot truly begin.

Mooting: A Three-Stage Guide

A moot breaks down into three distinct stages: first, researching; second, writing arguments; and third, oral argument.

1) Researching

Read a textbook

No matter what area of law the moot problem deals with, you will need a good understanding of the general subject. In the example given above, the subject is contract law. So get a contract law textbook, go to the chapter on duress, and read it.

Find cases

Note down any cases from the textbook that were mentioned in the moot problem as well as those that seem relevant. Then, go onto Westlaw or Lexis and look, in particular, at which court heard the case, what the legal issue is, what the ratio decidendi and obiter dictum were, which jurisdiction it was heard in, whether the case been used in subsequent cases, whether the facts are similar, which series of reports should be used, and whether it is binding on the present court. Read the whole judgment and find statements that can be used to support your arguments.

Read articles

Journal articles provide a critical aspect to your arguments, lending authority to your reasoning. They should be used as a way for you to think about the issues in a given moot problem.

2) Writing

Once you have done enough research, try to immediately start writing your submissions. A submission is a line of argument that advances your ground of appeal. Your speech will eventually be made up of several of these submissions and each will cover different points of law. Think carefully about the number of submissions put forward because you will also have to deal with judicial interventions within the time you are given. From these submissions, you will then write a skeleton argument.

Skeleton argument

A skeleton argument has four main parts to it.

1. Heading

The heading will include the court that will hear the appeal, the parties’ names, and whom you will be representing.

2. Introduction

If you have space, an introduction to the appeal would provide a quick overview of your client’s position. It will cover how the trial judge had decided on the issues. As an appellant, you would explain why the lower court was wrong; as a respondent, why the lower court was correct. The introduction serves to tell the reader what the court should decide and why.

3. Main submissions

After the introduction, your submissions will be a summary of the arguments for each ground of appeal. Usually, a skeleton argument would be written on behalf of the appellant or respondent, so your submissions should cover both the grounds of appeal. However, if you are mooting as part of an assessment, then you may be expected to cover only your own ground of appeal and so this may not apply to you.

There are many ways of structuring your submissions but one way of doing this is to follow this four-step process:

  • Proposition: What is the point you want to make?
  • Argument: How are you going to make your point?
  • Support: What legal support will you use? Which cases will you follow and what precedent is binding on the Court?
  • Apply: How do you apply these cases and rules to the facts of the problem?

Depending on the role that you take on, you and your team members will focus on different grounds of appeal. Senior appellants deal with the first ground of appeal; junior appellants deal with the second ground of appeal; senior respondents deal with the first ground of appeal; and junior respondents have to deal with the second ground of appeal.

For example, if you are a junior respondent, you will focus on part (ii) of the moot problem. In the above example, this ground of appeal would require you to demonstrate that: it is not a necessary ingredient in an action for the recovery of money paid under economic duress that the payor’s will was overborne.

Your submissions will therefore seek to persuade the judge that this ground of appeal should be accepted.

4. Request

Your skeleton argument will conclude with your last submission and a request for the court to allow (if you appear on behalf of the appellant) or dismiss (if you appear for the respondent) the appeal. Write your name below this last submission and add in the date.

Remember that there should be no footnotes in your skeleton argument. Your written arguments can have as many footnotes as you wish, but it is best to keep in mind that a skeleton argument is what it says on the tin: a skeleton, or summary, of the issues you are going to discuss with the judge.

3) Arguing

Preparing for oral argument

Aim to prepare so well for oral argument that you do not need to read from a speech. Reading from your notes distracts you from the addressing the court with the proper etiquette. This involves addressing the judge correctly, as ‘your Lordship/Ladyship/Excellency’ depending on the convention of the court you are addressing, as well as being silent whenever the judge talks.

Introduction

Your introduction will depend on the conventions of the particular moot court and on the sides that a mooter represents. The appellant opens the appeal.

Here are examples of what an introduction can look like:

Senior Appellant: May it please your Ladyship, my name is A and I appear in this case for the appellant, Henrietta Hurley, with my learned junior, Miss B. My learned friends, Miss C and Mr D, appear for the respondent, Geraldine Grant. I will be addressing your Ladyship on the first ground of appeal.

Junior Appellant: May it please your Ladyship, as has already been indicated, my name is Miss B and I appear for the Appellant on the second ground of appeal...

Senior Respondent: If it pleases your Ladyship, I am C and I appear for the respondent with my learned junior, Mr D, I will be addressing your Ladyship on the first ground of the appeal.

Junior Respondent: May it please your Ladyship, my name is D, and I will be dealing with the respondent’s second ground of the appeal.

Background of the appeal

If you are the senior appellant, you may need to give a brief summary of the facts.

Submissions

Give a brief introduction before you launch into your submissions, including a roadmap of what you will cover.

Correct citation

This involves saying, for example, ‘Pao On v Lau Yiu Long, which is to be found in the first volume of the 1980 Appeal Cases page 614’ or ‘DSND Subsea Ltd and Petroleum Geo-Services, reported in Building Law Reports 2000, page 531’.

Summarising facts

Have two or three lines of the facts ready in your head or in your notes.

Quoting from a case

Be succinct and then tell the court what you want them to do with it: follow/distinguish/overrule the case.

Conclusion

Senior appellant: In conclusion, I would invite your Ladyship to overrule... and to allow this appeal. My Lady, unless your Ladyship has any further questions, that concludes my submissions on this ground of appeal.

Junior appellant: In conclusion, I invite this court to follow the judgment of Lord Justice R in the case of T... I therefore invite the court to allow this appeal and, if your Ladyship has no further questions, this concludes my arguments on this ground of appeal.

Senior respondent: If your Ladyship has no further questions that concludes my submissions on this ground of appeal.

Junior respondent: In conclusion, my Lady, it is the primary submission of the Respondent that the rule in Pinnel’s case was modified... If your Ladyship is not inclined to accept this interpretation of the situation, it is the alternative submission of the Respondent that that there was no economic duress in the present case... In light of these submissions, I invite your Ladyship to dismiss this appeal and uphold the decision of the trial judge that... Unless I may assist your Ladyship any further, this concludes the submissions of the respondent.

Judicial interventions

Judges ask questions. Embrace them: there are many reasons why they might ask you a question and very rarely will they be hostile reasons. Most may simply be interested in the points being made and are asking you to clarify any points. Some judges may want to test you on your knowledge of a point of law, but as long as you have researched enough and thought through the different aspects of your submissions, you should be able to answer them well.

Answering these questions well depends mainly on your ability to stay calm: there is no use blurting out the first thing that comes to mind. For all that, there may be times when the judge asks questions that could throw you completely off track. Saying you do not know is not the end of the world: say ‘I cannot assist your Ladyship on this matter’ and gracefully move on.

Conclusion

At the end of the day, mooting is one of many things that will influence the way you grow academically and professionally. Whether you read this article hoping for a quick introduction to mooting so you can simply get it over and done with, or perhaps you are hoping to become a barrister and already know far more about advocacy than this article can possibly cover, there is one thing to keep in mind: mooting will always be a far more enjoyable experience if you think of it less as throwing law at the judges and more as a discussion between you and someone who is willing to be persuaded by you. Also - and this goes without saying - you will be at your most persuasive if you do not panic during your moot: remember to simply keep calm and talk law. And if you do have to do a moot in the near future, then I wish you all the best and I hope this article helped you prepare in some way.

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Tagged: Courts, Justice, Legal Careers

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