Developing a Legal Mind: Mooting & Mock Trials
What is mooting?
This is very good question, and one that is not easy to guess from the word itself!
A moot is a mock trial or pretend court hearing in which participants act as advocates for each side. Someone else will act as the judge presiding over the moot, and will play their role in the manner of a real member of the judiciary, interacting with the advocates to ask questions and push points rather than simply observing.
Moots are often run as multi-stage competitions or tournaments, with prizes for the winners, as well the kudos of a title, which will look excellent on your CV. Mooting is commonly undertaken by trainee lawyers, in particular those who want to become barristers, as court advocacy is the foundation of a career at the Bar. Nevertheless, it can be a great activity for anyone to undertake as it helps to develop public speaking and advocacy skills. Furthermore, as the legal profession shifts towards encouraging solicitor-advocates in lower courts, any trainee solicitors would do well to heed this trend and ensure that their advocacy is up to scratch.
What are the main differences between mooting and a real court hearing?
A significant proportion of real court hearings are disputes of fact – disagreements about what the parties agreed, why they agreed, and what they believed at the time of agreement.
In contrast, moot problems normally turn on questions of law and legal interpretation, matters which real advocates are unlikely to be dealing with until they become more senior members of the profession. As such, moots are normally staged in appeal courts, which deal with a greater proportion of arguments on legal construction. This allows the advocates to practice making legal arguments, and means that they do not have to deal with witness handling and questions of evidential admissibility.
Having said that, moots are sometimes run as full trials with witnesses and even juries, but this is unusual.
Mooting problems are normally chosen because they are ‘moot’ points – that is, legal points that could feasibly be supported by reasonable argument on both sides. In most real court hearings, the law is clearly defined and will favour one party. The use of moot points in mooting problems has the advantage of not putting the participant on either side of the legal problem at an automatic disadvantage. Consequently, the winner of the moot is not the person who got handed the easier side of the argument, but the person who is the better advocate.
In short, there are many differences between mooting and real advocacy, but the important thing is that the some of the same advocacy skills are deployed in both, which is what makes mooting such a great training exercise.
What are the main stages of a moot?
Before the moot starts, you will be given the moot problem – this will be a factual scenario, handed over with a bundle of evidence, and instructions as to which side of the dispute you are representing. You will then have a specified amount of time to prepare your arguments, either in a team or alone. This can range from an hour at speed moots, or several weeks for more complex problems in bigger competitions.
Ordinarily, you will be required to submit a ‘skeleton argument’ by a particular date/time in advance of the moot. A skeleton argument is, exactly as it sounds, an outline of the points that you intend to make. It is very important that your skeleton is –
1. as concise as possible;
2. accurate; and
3. covers all and only the main points of your argument.
It can be very tempting to see the date for skeleton submission as a sort of halfway point for completing your argument – it is not; you effectively need to be ready to moot when you submit it, even if the moot is not going to take place for another few weeks. If you have not completely constructed your argument before writing your skeleton, you have no way of knowing that it is complete and accurate. Writing a skeleton argument is a skill in itself but, suffice to say this is not some scribbled mind map of your ideas. It is a formal document that can be a lifeline in a hearing that is not going your way, so take heed and prepare well!
Once you have sent in your skeleton argument, you will be given your opponent’s skeleton argument, which gives you a good opportunity to prepare points of rebuttal and to consider where the strong and weak points of your own case are, and how you can bolster it.
The exchange of skeleton arguments is something that happens in real court hearings too, as it allows the parties and the court to see what they are up against beforehand, and prepare accordingly. The rationale for this is that it makes parties use court time more efficiently, and it strengthens equality of arms between parties, particularly where one side is not legally represented.
You will then have the moot on the day. You will likely be given a certain amount of time that you are allowed to speak for – do not be fooled, 10 or 15 minutes speaking will fly by, and you need to ensure that you have made the point in as short a time as possible to do so properly. If you are running out of time, make sure you have covered all of the key points, even if you haven’t managed to reference all your supporting evidence, and try to give a short summary at the end, even if it is only two sentences long. This will remind the court what you are asking for and, broadly, why.
Top tips for preparing your moot problem
When you receive your bundle, you need to ensure that you read and process all the information in it. The instructions from the solicitor will normally outline the most important points, so I would make an effort to start there – this means that when you get to the stage of wading through the bundle you know what you are looking for and what the dispute is about. I would recommend reading the bundle twice (once skimming, and once in more detail with a highlighter) before you move on to look at the law or any comparator cases.
It goes without saying that once you move on to doing your own research you need to ensure that all cases you are looking at are valid (have not been overturned) and all legal provisions are up to date. In my very first moot, just a month into my legal education, I tried to reference a case that had since been overturned. The judge’s treatment of this serious faux pas was scathing in the extreme – save yourself the anguish and make sure you check! Westlaw and LexisPSL have little markers on cases indicating the judicial treatment they have received, which is very reliable and helpful for this.
In writing your skeleton, I cannot stress enough that parsimony is key – a skeleton is not about pleading all of the facts of the case, it is about outlining your legal argument. If you write a skeleton that does not require lots of annotation with reference to supporting evidence, then it is probably too detailed and fact-heavy. This process of distilling legal arguments down to only the absolutely necessary points can be really hard and will take some practice, but will get easier with time.
Ensure that any cases you want to rely on to support your argument are properly referenced and that you have valid copies of the judgement/relevant section thereof appended to your skeleton before you send it in. If you fail to send in your authorities then you will not be able to rely on them. This could blow a serious hole in your argument, so make sure it’s all there.
Top tips for advocacy
As anyone who has done public speaking will know, you always need to speak slower than you think you do – it can be very hard to understand someone speaking at a serious rate of knots, so slow down, chill out and make some eye contact. You are not lecturing the judge, you are persuading her, and that requires a very different demeanour. The more confident you come across, the more persuasive you will seem.
Make sure you –
a. Know what court you are in and therefore what mode of address you should be using for the judge – you don’t want to be calling a Lord Justice of the Court of Appeal ‘Sir’, what a way to get off to a bad start…
b. Understand how to give the full citation of all of your cases. For example, if you wanted to cite orally Partridge v Crittenden [1968] 1 WLR 1204, you would say ‘in the case of Partridge and Crittenden, reported in Volume 1 of the Weekly Law Reports of 1968, at 1204’. After doing one full citation, it will always be best to say to the judge ‘may I dispense with formal citations?’ to avoid having to repeat these mouthfuls. They will almost always say yes, but just in case, make sure you understand how citations work.
c. Are ready to be asked to hop around your skeleton – you might start your argument on point 1 and the judge can stop you and immediately ask you to address point 3 first. You need to be sufficiently familiar with your evidence and argument that you can smile, say ‘of course’, and move seamlessly onto point 3.
d. Know where everything is in the bundle. There is nothing worse that you referencing a piece of evidence and then having to spending a painful 2 minutes rifling through the bundle to find the page reference.
e. Give the judge enough time to look at/find documents that you have directed them to – they are not superhuman and may need 20 seconds to locate the right page and paragraph after you have given them to reference.
f. Don’t learn a speech by rote. PLEASE. Yes, it makes for a more comfortable crib when you are nervous, but it will make your advocacy worse, and it will undermine the training element of the exercise. Instead, practice with an annotated skeleton – you will sound much more fluid and less monotonous, and you will be able to deal with judicial interventions better.
Finally, have fun! Mooting is really just a bit of fun, like a debate, and the more you enjoy it, the more relax and learn.
Useful resources
https://www.theguardian.com/law/2017/jun/28/advice-for-law-students-how-to-moot
https://global.oup.com/ukhe/mooting/mootingtips/?cc=ro&lang=en&
https://thestudentlawyer.com/2012/11/09/mooting-performance-tips/
https://www.law.ox.ac.uk/current-students/mooting-oxford/mooting-what-it-and-why-take-part
https://learnmore.lawbore.net/index.php/Mooting_Top_Tips
https://www.chambersstudent.co.uk/where-to-start/newsletter/what-is-mooting
By Emma (PPE, University of Oxford & Graduate Diploma in Law, City, University of London)
Interested in developing your advocacy skills? Why not take a 1-1 masterclass with Emma. We will also be holding mooting workshops (small class size) throughout the year, so register interest if you are looking to kickstart your legal career!
