The Elementary Guide to 'Moot Court'

Transcription

1 Frm the SelectedWrks f Lucky Michael Mgimba March, 2012 The Elementary Guide t 'Mt Curt' Lucky Michael Mgimba, Mr. Available at:

2 THE ELEMENTARY GUIDE TO MOOT COURT A Handbk fr a Lawyer in the Making LUCKY MICHAEL MGIMBA* [REVISED EDITION - MARCH 2012] *LLB St. Augustine University f Tanzania, 2009 participant in the All African Human Rights Mt Curt Cmpetitins held in Lags Nigeria, 2010 and 2011 participant in the Phillip C. Jessup Internatinal Law Cmpetitin held in Washingtn D.C. USA, Cach f the 2011 St. Augustine University Team t the African Human Rights Mt Curt Cmpetitin held in Pretria-Suth Africa, and Cach f the St. Augustine University Team t the East African Reginal Mt n the rights f the child held in Nairbi Kenya. 1

3 Abstract Mt Curt is an extracurricular activity that allws law students t take part in simulated curt prceedings. Participants fcus their arguments n a hypthetical case based n internatinal law r municipal law depending n the nature f the case itself and the curt in which it is submitted. Participatin in mt curt has prven t be an exceptinally re-warding educatinal experience, which prvides law students with the pprtunity t think critically abut imprtant issues and speak cnfidently in frnt f panels f judges, but it further creates in them better understanding in the laws they theretically study in class sessins by practically researching, writing and rally arguing n them. This guide is primarily intended fr law students in Tanzania wh are r will be expsed t mting at any level during their curse f study. The Infrmatin presented includes practical tips n hw a student may g abut in preparing ral and written arguments and what t expect n the day f the cmpetitin. 2

4 INTRODUCTION Mt Curt is a pedaggical exercise designed t fcus law students n certain elements f bringing a case befre a hypthetical curt. 1 The term mt meaning hypthetical, is used because the activity is based n fictitius case. Mt Curt prvides law students with the pprtunity t practice their advcacy skills by writing legal briefs and any ther relevant dcument and later presenting ral arguments befre a panel f judges. Mt Curt differs frm Mck Trial in that it is slely based n a simulated adjudicatry bdy nt invlving the questining f witnesses r the presentatin f evidence, that is why in sme jurisdictins mt curt nly invlves cases based n appellate practice r arbitral case. A case in a mck trial usually refers t a bench trial r jury trial (in sme jurisdictins such as the USA). The initial prcess fr any mt curt is that students receive a hypthetical case which is ften referred t as a prblem, but may als be referred t as a cmprmis if the case is befre the Internatinal Curt f Justice 2 r therwise depending n the nature f the mt cmpetitin at hand. Students use the facts presented in the prblem, alng with additinal research, t develp legal arguments fr ne r mre sides f the issues that arise. Whereas dmestic mt curt cmpetitins tend t fcus n municipal law, reginal and internatinal mts tend t fcus n Internatinal Law. These legal arguments are then refined and presented during the Mt Curt in tw frms. First, students prepare a written submissin, ften called a brief, which is submitted t the cmpetitin judges t be read and graded. Students then prepare and present arguments befre a panel f judges wh cnsider bth the quality f the written dcument and the ral presentatin in grading the presenting sides. 1 Zarik Hafez and Cecille Elisabeth Schjatvet, ILSA Guide t Internatinal Mt Curt Cmpetitin, Internatinal Law Institute, Washingtn D.C Ibid 3

5 BRIEF HISTORY OF MOOT COURT Mt Curt has been a tl fr training students fr the legal prfessin fr hundreds f years. The term was derived frm the Angl Saxn times, when mt (gmt r emt) was a gathering f prminent men in a lcality t discuss matters f lcal imprtance. The first recrded reference t a mt curt appears in the 997 in England. 3 Mts were cmmn at the English Inns f Curt and Chancery in the furteenth century, in the eighteenth century these Inns prvided students with a frum fr learning nt nly law but als histry, scriptures, music, and dancing. Several histrians put the Inns f Curt, fr the study f law, n the same fting as universities. When frmal legal educatin began in the United States in the late eighteenth and early nineteenth centuries, the practice fllwed were similar t thse f the Inns f Curt, with lectures by prfessrs fllwed by mt curt exercises. 4 This mdified English system cntinued until the case methd was intrduced at Harvard Law Schl in 1870 under Dean Christpher Clumbus Langdell, carrying n this traditin in the 1870 s prfessr Thayer wh attended Harvard in the 1850 s, advised his students t attend mt curts mst faithfully because they give yu the pprtunity t apply yur knwledge and try yur hand at actual wrk f the Prfessin. 5 Internatinal Mt Curt cmpetitin began in 1959 with the Phillip C. Jessup Internatinal Mt Curt Cmpetitins. 6 This prestigius annual internatinal cmpetitin invlves students frm law schls thrughut the wrld. T date, mt curt has expanded frm cmpetitins within a university t cmpetitins at natinal level, cmpetitins between states and even cuntries. 3 Mhamed Rachid and Charles Knerr, Brief Histry f Mt Curt: Britain and US, Paper presented at the Annual Meeting f Suthwestern Plitical Science Assciatin, Galvestn, TX, March J. Thayer, Ntes n Teaching Evidence, 20 see J. Thayer, papers, bx 1, ff. 1-2; C. Warren, Histry f the Havard Law Schl, 2:129 5 Hyacinthe Ringrse, The Inns f curt: A Histrical Descriptin f the Inns f Curt and Chancery f England, 1909 p Held each year n spring in Washingtn D.C.; Currently the largest Mt Curt Cmpetitin in the Wrld invlving ver 150 law schls and mre than 80 cuntries each year 4

6 PREPARATION FOR A MOOT As I prir stated the initial prcess fr any mt curt is that students receive a hypthetical case which is ften referred t as a prblem. It s frm this stage that this guide will take yu thrugh t as far as the ral presentatin is cncerned. Let s nw presume that yu have just received the hypthetical prblem n yur hands Dn't panic! Okay. S yu've gt yur first mting prblem. Aaaagh! Where t begin? Well, first, let s make a few assumptins. 1. yu're a law student 2. yu knw the law bth municipal and internatinal 3. yu knw hw t find law cases, bks and ther surces in the library, and hw citatins wrk If any f the abve isn t true, then yu will need t read a bk n the basics f law befre yu start mting, such as the excellent Learning Legal Rules 7 r Glanville Williams' Learning the Law. 8 Hw t use a Law Library by Jean Dane and Philip A Thmas is als useful t refer t. Befre yu get started it is fundamental t be aware as t what curt r adjudicatry bdy the case is t be presented and submitted. This will give yu the clear picture as t what law is applicable, wh are the parties, what is the nature f the case and varius ther imprtant infrmatin. It is usually best t wrk initially in a pair n the mt prblem until yu can identify the issues and split up the wrk fairly. The first thing t d is t lk carefully at the prblem, try t 7 James A. Hlland and Julian S. Webb, Learning Legal Rules: A Student s Guide t Legal Methd and Reasning, Fifth Editin, Blackstne Press 8 Glanville L. Williams and A.T.H Smith, Learning the Law, Sweet and Maxwell Publishers,

7 summarize it, and wrk ut what area, r areas, f law the prblem deals with. e.g. crime / trt / prperty / cntract / emplyment law/ Internatinal Law. Analyzing the mt curt prblem A mt Curt prblem is mainly the hypthetical case that has been kept at yur dispsal, ften referred t as a prblem. It is frm this prblem that any actin cncerning the mt must be carried ut. The initial prcess here is t clearly analyze the facts f the case, which is mainly aimed at tw main things; first, knwing the stry and secnd, capturing any imprtant event which frm an integral part f yur case. In ding s several things must be derived frm the prblem, these include: imprtant Arial facts (if lcatin descriptin is given), dates, names f persns whether natural r artificial, and any ther facts which in ne way r the ther cmplete the stry. Hwever in carrying ut the analysis a nte must be taken in the fact that althugh sme facts may seem t be mre crucial than the rest thus well nted at this early stage, all facts are indeed imprtant and shuld be taken int cnsideratin during yur research. The best way t analyze the mt prblem is summarizing r making key ntes f each paragraph in the prblem. This helps the mter in that it simply simplifies the bunch f wrds in a paragraph in t simpler statements which may be easily remembered during research, writing f briefs and presentatin. 6

8 Getting started... When factual analysis is dne, the next step is the intense research, this is the mst crucial part f the mt preparatin, and in ding yur research there are usually tw places t start: 1. Yu can lk the area f law up in a law textbk, read the chapter r sectin n it, and find ut the names f sme relevant cases, as well as getting a picture f what the case is abut and what are the real issues t be argued. There are a number f general textbks n legal subject areas which are useful t get yu started. Lawyers will prbably have cme acrss them during their studies. Examples include: Trt : Textbk n Trts, Michael A Jnes Cntract : Cntract: cases and materials, H G Beale, W D Bishp, M P Furmstn Criminal : Criminal Law, Smith & Hgan Cases and Materials n Internatinal Law by D. J. Harris Prperty : Elements f Land Law, Kevin J Gray, Susan F Gray It is vital that yu use the mst up t date versin f any textbk. Infrmatin frm a textbk mre than five years ut f date shuld be duble checked t see whether any mre recent cases have affected the legal psitin. 2. If the mt prblem mentins the names f cases - and mst d - yu can lk these up directly, and reading thrugh them may give yu a clearer idea f the likely prblems t be encuntered in the mt. Sme judges realise the imprtance f their judgments t law students, and will g ut f their way t clearly summarize the legal psitin in the relevant area f law. Lrd Denning judgments and Mwalusanya J. can ften be a blessing (unless he is talking abut prprietary estppels r legitimacy f a child brn ut f wedlck respectively!) The judgment in a case will refer t ther cases, which may als be wrth lking up. Where the case is in the Curt f Appeal r belw, yu shuld check that there has nt been a subsequent appeal and different decisin. Sme well kept sets f law reprts will tell yu this 7

9 via stickers in the margin. Electrnic searches where available (e.g. the electrnic Tanzanian Law Reprts published by JUTA) are a useful methd f checking whether a case cntains the mst up t date statement f the law - type in the case number as a search string and this shuld prduce a list f subsequent judgments which have mentined the case cncerned. On-line search tls such as Lawtel, Hein nline, r Lexis Nexis can be useful fr checking fr up t date cases and legal publicatins, if yur institutin subscribes t the service. There are als free surces f recent legal infrmatin n the internet which can be easily accessed hwever high precautin must be taken as t the trustwrthy f the infrmatin published. Wrking ut yur main issues Okay, after a quick lk at the cases r textbk, yu shuld be beginning t get an idea f what the case is abut. The next step is t wrk ut exactly what yu are suppsed t argue n. These are the main issues which may either be pinted ut at the end f Prblem as questins presented by parties befre the curt, r yu may either need t extract them frm the prblem. After knwing and writing dwn the issues relevant t yur case, psitins r cntentins must be ascertained, that is t say each cunsel n bth sides f the case must determine what his psitin r cntentin is in regard t all issues f the prblem. Eg: if the first issue is as t whether the statement by the respndent amunted t defamatin Then the applicant s cntentin shuld be it is the applicant s cntentin that the statement by the respndent is indeed defamatry It s frm these cntentins that arguments are raised, that is t say the reasns supprting yur cntentin are the arguments yu are t argue fr bth in yur written submissins and ral submissins. 8

10 Arguments supprting each psitin are what shuld be prepared next s that yu can begin t identify and find authrity fr the pints in yur favr. Unfrtunately, this is nt easy, and is a pint where many first time mters can becme very cnfused. Yu shuld have been infrmed at the time f receiving the mt prblem whether yu are the applicants r respndents, appellants r respndents, and whether yur case is in the Curt f Appeal, High Curt, r any ther curt r tribunal. If yu are nt sure, ask. Appellants, Curt f Appeal case Yu are appealing against the decisin made in the High Curt. The High Curt judgment is ften stated in the prblem, and yu must argue against the reasns given in that judgment. Yu are usually helped by a statement f the grunds f appeal. These are the pints which yu must argue. What ften wins the case is sund reasning, and disguised plicy arguments. The Curt f Appeal is in thery bund by its wn previus decisins, but can depart frm them if the earlier cases are carefully distinguished n their facts. Appellants, High Curt case Yu are appealing against the decisin f the judge at first instance, i.e. the riginal curt where the case is tried. This is generally a District Curt r a Resident Magistrates Curt judge, depending n the type f case. Yur must argue against the reasning f the first instance judge, and supprt the grunds f appeal. A High Curt case is ften wn by careful use f the Curt f Appeal authrities, which are binding n the High Curt, if they can be shwn t be apprpriate. The High Curt will als generally fllw its wn previus decisins. Respndents, Curt f Appeal case 9

11 Yu must respnd t the grunds f appeal put frward by the appellants, as yur aim is t have the High Curt judgment reaffirmed. It is usually necessary t argue the ppsite f that stated in the grunds f appeal. If any High Curt judgment is given in the mt prblem, yu must find authrity t supprt the arguments made by the High Curt judge. Respndents, High Curt case Yu must respnd t the grunds f appeal put frward by the appellants, as yur aim is t have the decisin f the riginal curt reaffirmed. Yu must argue the ppsite f that stated in the grunds f appeal. Any decisins in the Curt f Appeal which supprts the first instance decisin are likely t be binding n the High Curt, and respndents shuld carefully argue why such authrities shuld be applied in this case. Applicant, Internatinal Law case Internatinal Law cases are a little different here and mre cmplex, in that cunsels must search fr the arguments afresh, but the key pint is that all arguments must be based upn relevant principles f Internatinal law and their relevance must be derived frm the facts r the prblem at hand. Respndent, Internatinal Law Case Essentially the Respndent s wrk is t respnd t the submissins by the Applicant s, and therefre nting the fact that this is nt a case n appeal, any argument by the applicant will clearly be btained frm the facts t as far as their pleadings are cncerned. Respndent s case is usually wn by disqualifying the applicatin f certain principles which d nt supprt the respndent side, in exchange fr principles supprting the respndent s side. 10

12 Eg If the applicant will argue that the respndent vilated the internatinal law principle against use f frce The Respndent shuld then disqualify the applicatin f such principle by justifying his actins under self defence r necessity. NOTE: Appellants/ Respndents/ Claimants/ Defendants Sme cnfusin will inevitably arise ver terminlgy at this pint. The claimants (referred t in ther cases as the plaintiffs) are the party which initiated the riginal actin, but are nt necessarily the appellants. Here is an example. 1. Juma sues Halima ver negligent wrk. Juma = claimant Halima = defendant 2. Bakari wins. Hamadi appeals against the decisin f the High Curt Bakari = claimant and respndent Hamadi = defendant and appellant 3. Jhn wins. Simika appeals t the Curt f Appeal. Simika = claimant and appellant Jhn = defendant and respndent 4. Ardenia (a state) sues Rigalia (anther state) ver vilatin f its cntractual bligatin Ardenia = Applicant Rigalia = Respndent 5. The prsecutr f an Internatinal Curt e.g. ICTY/ ICTR/ ICC sues Jseph Kny fr crimes against Humanity The Prsecutr (usually regarded nly as a prsecutr) Jseph Kny = Defendant This shws why it is essential t tell the judge whether the appellant is the claimant r defendant, It is ften useful t write dwn exactly what yu are arguing in each particular issue. 11

13 E.g. If a grund f appeal is The weapn did nt cnstitute an 'ffensive weapn' under s.1(4) f the Preventin f Crime Act and yu are the respndents, yur argument will be The weapn did nt cnstitute an 'ffensive weapn' under s.1(4) f the Act. Splitting the wrk Once yu have identified the arguments t be made, it is pssible t split the wrk between the tw advcates, and wrk alne. It is, hwever, very beneficial t wrk tgether, and have a wrking knwledge f each thers' arguments fr when it cmes t the mt. Usually, a prblem will have several grunds f appeal r issues. If there are mre than tw, yu will have t decide hw t split them. At this pint yu will have t decide wh will be lead, and wh will be the junir advcate fr the mt. The junir generally has less speaking time, but, in the case f the respndents, gets the final wrd. It is sensible fr the junir t take the grund which appears t be the least wrk, r t take nly ne ut f three grunds. If, after sharing the lad, it appears that the prblem has been unfairly split, it is imprtant t rectify this, r yu may find that later, insufficient speech time will be devted t a particular pint in the mt. Supprting an Argument There are a number f ways t supprt a legal argument: 1. Authrity 2. Reasn and lgic 3. Plicy arguments By far the mst imprtant f these is the first. Indeed, reasn and lgic as well as plicy arguments shuld be used s subtly that the judge is nt aware f their existence. Any legal argument shuld be firmly funded n authrity. 12

14 The nvice shuld cncentrate slely n use f authrity. Authrities befre a lcal curt can be (in apprximate rder f imprtance) 1. Cnstitutin 2. Legislatins 3. Case law 4. Received Law ie Statutes f General Applicatin, cmmn Law and Dctrines f Equity 5. Islamic and Custmary Laws (n sme specific issues) 6. Internatinal Law (NB English law is ften applicable as persuasive in Tanzanian curts as regards the pints which are t be argued, but it is imprtant t check that English authrities used are indeed apprpriate.) If the case is befre an Internatinal Curt, the authrities befre the curt can be (in apprximate rder f imprtance) ie reference can be made t Article 38 (1) f the ICJ Statute. 1. Internatinal cnventins (whether general r particular) 2. Internatinal Custm (as evidence f general practice) 3. General Principles f law 4. Judicial Decisins and Teachings f highly qualified publicists (as subsidiary surces) 5. Ex Aequ et bn (equity and gd cnscience) Care needs t be selected in the chice f authrity, as the effect will depend n the curt in which the case is heard and als the judge's wn preference. Mters shuld always refer t case law carefully - there are embarrassing mistakes t be made! Sme judges will reject all cases, r even everything except the first three. Thus ask yu 'Des that case have any bearing n this curt?', the best rule n this is t stick as much as pssible t the first tw surces f authrity, but if a particularly gd authrity is fund elsewhere, then try it and play it by ear. 13

15 If ne f the main Higher Curt cases appears t be based n an verseas authrity then it is prbably acceptable t refer t it. It may be prudent t intrduce the case by saying 'althugh nt binding t this Curt it may be f assistance t examine the judgment in...' A nte must be made n the use f textbks and articles. Use textbks rarely. A textbk may nly be used if it is a leading authrity n the subject, as defined by practicing lawyers, nt lecturers. Yur curse textbks (if yu are a lawyer) will almst certainly nt be cnsidered gd authrity. Practitiner texts which culd be cnsidered can ften be identified because they usually have the authr's name as part f the title! Examples include: Snell's Equity Chitty n Cntract Emmet n Title Megarry's Manual f the Law f Real Prperty Clerk and Linsell n Trts McGregr n Damages The way arund this is t find ut which case the textbk writer is using t supprt their wn arguments (there generally is a case) and qute frm that. Parliamentary debates and the debates f standing cmmittees can nly be used in very specific circumstances where a statute r statutry instrument is ambiguus, bscure r absurd. See Pepper -v- Hart [1993] 3 WLR 1032, which is the first case where the debates were allwed t be cnsidered in English Curts. Everything yu put t the judge in a speech shuld be supprted by sme srt f legal authrity. The judge is liable t ask, quite rightly, 'What is yur authrity fr that cunsel?' Yu cannt make up arguments ut f thin air. The nly pssible exceptins t this are a simple lgical statement arising frm the facts stated, r a cmment n plicy. 14

16 The facts f the case are nt in dispute N matter hw little yu dislike the fact that Halima X was fund t be dishnest, if it states this in the facts f the case, and it is nt disputed in the pints f appeal, yu cannt argue against it. The appellate curt des nt have access t the evidence which was in frnt f the riginal curt, and s cannt dispute the findings it made n the basis f that evidence. The mt argument is n the law, nt n the validity f any factual evidence. What t Call Members f the Curt A simple prblem, but ne which a surprisingly large number f mters get wrng! A single male judge, in bth the Curt f Appeal and the High Curt is t be referred t as 'My Lrd' where yu wuld usually use a name, and 'Yur Lrdship' where yu wuld usually say 'yu'. A male r mixed panel f judges are 'My Lrds' r 'Yur Lrdships'. A single female judge can technically be referred t as 'My Lady' r 'Yur Ladyship', althugh sme female judges may prefer t be Lrds - it may be wise t check the judge's preference befre the mt starts. In Tanzania it is rather mre apprpriate t use Madame Judge fr a female judge, since the use f My Lady can be referred as disrespect t the judge in the mare sense f the wrd. A female panel may als be Lrdships. The current absence f an all female panel f judges in the Curt f Appeal means we can nly speculate n hw they shuld be referred t! All references in this 'Elementary guide t Mt Curt t My Lrd, r Yur Lrdship, shuld therefre be taken t include Madame Judge, r Yur Lrdships where apprpriate. 'Yur hnur' is nt suitable fr addressing the judge in an appellate curt, n matter hw many times yu hear it frm ther lawyers! 15

17 Judges in an Internatinal Curt such as the Internatinal Curt f Justice r Internatinal criminal Curt shuld rather be referred as yur excellence r yur excellencies if mre than ne. Hwever where a judge presides ver in a panel f judges, he is rather referred t as Mr. President if a male, while n the ther hand he is regarded as Madame president. Thus greeting such a panel befre an internatinal curt r tribunal will be simply: Mr. President, Yur excellencies! r Madame President, Yur excellencies! (With a bw) The tw ppsing mters shuld never be called 'the ppsitin' and certainly nt 'the enemy' r 'them ver there'. (Yu wuld be surprised what terms are used!) The crrect manner f referring t ther cunsel is as 'My Learned Friend(s)' r 'My Learned Friends Oppsite'. Als apprpriate is 'Lead/junir cunsel fr the appellants/respndents', r 'Mr Salim cunsel fr the appellants'. (In practice advcates are nly 'My Friend(s)', and whether r nt they are 'learned' is a matter f much debate at the Bar!) Examples: 'I am grateful t yur Lrdship' 'My Learned Friends ppsite/ The Cunsel fr the Applicant have cited a number f interesting cases' COURT ETIQUETTE The language f a curtrm is different frm that used in everyday speech, and yu shuld try and frmulate phrases as yu might expect an Advcate r judge t say them. Cllquial phrases, such as 'Okay' and 'All right' are nt acceptable. If a judge crrects yur mistaken interpretatin f a case, the crrect respnse wuld be smething like 'I am grateful fr 16

18 yur Lrdship's/ yur excellencies assistance' rather than 'OK.' Speaking slwly ften allws yu t think f what might be apprpriate t say, rather than hw yu might rdinarily respnd. Thanking peple is always a gd idea, even if yu wuld rather thrttle them! It is als prfessinal t ask the judges permissin at varius stages f the speech: 'With yur Lrdship's/ Excellency s permissin I wuld like nw t...' Anther pint t remember is that yur rle is t assist the judges in their decisin making. What yu say and d is fr the judges' benefit, s keep a careful watch n them t see if they are fllwing yur argument. Allw them time t find a citatin, unless they indicate yu shuld g n. Interact with the judge. Talk t them, nt at them. As an advcate, yu are giving arguments based n legal authrities t aid the judge. Yu are at n stage giving yur wn pinin, merely restating the pinin f thers. The pinin f the Advcate is irrelevant fr the curt t make its decisin. As such, yu shuld never tell the judge what yu think, suppse r suggest. Yu must merely submit humbly that the judge shuld adpt yur interpretatin f the authrities given. Therefre the phrase 'My Lrd/yur Excellency, we/ the applicants r respndents submit that' shuld ccur fairly frequently in a gd mt speech. The speech shuld als give the full citatin f a case as sn as it is mentined, and the advcate shuld always refer t the reasning, decisin, r factual similarity n the latter case r t the facts if the judge wuld like a summary f the facts f the case. e.g. 'A further authrity which supprts this is the case f Mwajuma versus Mwanahamisi which can be fund in the 2003 Tanzania Law Reprts at page 132. Upn which..' Putting Tgether the Presentatin The starting pint f yur case shuld be the pints f issues as stated. As stated befre, it s upn these issues that each cunsel will prtray his psitin (cntentin) and give ut reasns (arguments) t supprt that psitin. 17

19 The appellants must prve thse pints f appeal t be crrect using legal authrity, and the respndents must respnd t the appellants' arguments in each issue. Select arund fur cases per pint (r as many as are necessary / permitted by the mting rules) and then base yur argument arund these. The Lead Appellant It is usually the jb f the lead cunsel fr the appellants t intrduce the advcates t the curt, and t summarize the case. Make sure yu prepare a summary - dn't just read frm the mt prblem. Intrducing the advcates culd g as fllws: 'My Lrd, My name is Juma Kibati, and this is Hamisi Hassan. We are cunsels fr the appellant, Mr X / X C., wh is the claimant in this case. Or Mr. President, Yur excellencies! My name is Asma Hassan the first cunsel fr the applicant, mr. Y/ Y & C./ the state f Ardenia, tgether with my c-cunsel Ismail Juma in this case cncerning (Always refer t R as 'The Republic'. The case name R v. Smith shuld be read in a mt as 'The Republic versus Smith'.) 'Wuld yur Lrdship like a brief summary f the facts f this case?' The judge will ften reply 'N Agent please prceed', but in case he replies in the alternative the fllwing shuld be yur reply: 'In this case, X plc...(give a brief summary f the facts stated r including details f the decisin at first instance, and the grunds f appeal if the case is n appeal.)' 18

20 The lead appellant will then generally state which grund he/she will be dealing with, and cmmences the argument. Eg yur lrdship, fr the next 20 minutes I will be presenting n the first and secnd issues cncerning. My C-cunsel will then prceed t address the last tw issues cncerning, we hereby reserve 3 minutes fr rebuttal The speech can then take a number f different frms, and it is imprtant that advcates are encuraged t develp their wn style. It is ften useful t take the judge thrugh the relevant law first, befre prceeding t the main supprting case. D nt mentin any arguments against the respndent s case, since the judge might start asking questins immediately and therefre destructing yur intrductin. The Junir Appellant The junir cunsel shuld generally have his/her wn issues r grund f appeal t deal with, and shuld nt attempt t embellish arguments made by the lead cunsel. N intrductin is needed, save pssibly: 'My Lrd, I am Jhn Mgaya, junir cunsel fr the appellants in this matter cncerning I shall be dealing with grund tw f this appeal, which states that...' Or Yur excellencies as the first cunsel stated my name is Ismail Juma the secnd cunsel fr the applicants in this case, I shall be dealing with the third and furth issues cncerning. The presentatin can then prgress in a similar way t bth lead cunsel and junir cunsel. Eg Starting with the first issue which states as t whether.. It is the Applicants Cntentin that 19

21 The arguments t supprt this psitin are: first.., secnd., etc T begin with the first argument that The Lead Respndent The rle f the respndent is a slightly different ne. Althugh the respndents can, and usually will, cite their wn arguments, their main rle is t respnd t the arguments put frward by the appellants. The respndents' speeches shuld therefre be fluid, and adapted t answer the pints made during the appellants' speeches. Eg My lrd, the applicant has errred in law by stating that the respndents rather submit befre this hnrable curt that The Junir Respndent Junir cunsel will fllw n frm the lead, but will usually deal with a different pint f appeal r issues. The junir respndent will be the last persn t speak fr the respndents and the speech may therefre end with a brief summary f junir and lead cunsel submissins, althugh sme judges are very unsympathetic t any repetitin. Eg My Lrd r Yur Excellencies the Respndent hereby requests this curt t adjudge and declare that.. The Appellants 'Right t Reply' (Rebuttal) In mst mt cmpetitins the lead appellant r applicant is then given sme extra time t respnd t the respndents' arguments. This time shuld be used t rebut the respndent s arguments, and nt merely t restate the case made earlier. There shuld nt be mre than three pints f rebuttal, the fewer the better. Pints presented must be thse pints which will nt attract any cntradictin frm the judges, thus shuld be direct and strngly funded n an undisputable law. 20

22 Discrediting a Legal Argument There are a number f pssible ways t d this 1. Distinguishing the case - this means that yu argue that the case cited is in sme way dissimilar t the current ne s that the judgment made in the case is irrelevant. This can be dne either by shwing material (i.e. relevant) differences in the facts f the tw cases, r by shwing that the case cited was based n a different set f laws r regulatins. 2. Errrs in citatin - yu may be lucky enugh t spt an errr in the citatin. Pssibilities include: citing a High Curt judgment where the case went t the Curt f Appeal wh fund differently - the Curt f Appeal decisin effectively verrules the High Curt decisin Citing a dissenting judgment - this is the judgment f a judge wh was in the minrity, and has n legal authrity. Mters shuld take care t avid this embarrassing mistake - check that the cnclusin f the judge is the same as the final verdict - usually printed at the end f the case reprt Quting frm the headnte r arguments f cunsel - the 'headnte' is the sectin prviding a summary at the start f a case reprt. Sme reprts als give extensive cverage t the submissins f cunsel. Whilst these may be f assistance in preparing the mt, they shuld never be used in a mt speech as they carry n legal authrity 3. Finding a later/mre superir case which disagrees. This is cncerned with the rules f precedent. A later judgment r ne in a higher curt will supersede the earlier/lwer ne. 4. Lgical/legal flaw - careful reading f the case r statute may suggest an errr in a line f argument, r that it des nt flw lgically frm ther authrities cited. 5. Finding a Custmary Internatinal law and it s evidences which directly verrides any treaty law r case law decided, if the case is befre an internatinal curt. 21

23 MOOT COURT DAY Dn't panic! Okay. It's the day f the mt. Yur stmach is full f butterflies. But dn't panic! Yu shuld have prepared and rehearsed yur presentatin, and discussed what each f yu will say with yur mting partner, t prevent any verlap f arguments. If there is time, it is a gd idea t practice the presentatin in frnt f each ther. If yu have never been t the rm where the mt is being held, it is helpful t pay it a visit in advance, t familiarize yurself with the layut. Familiar territry is less intimidating. What t wear Yu may have been given guidance n what t wear by yur mting fficer, r in yur mting rules. Sme friendly mts are mre relaxed as regards dress cde, thers have stricter standards. It generally adds t the atmsphere f the mt if the advcates are smartly dressed in businesslike attire. Sme universities will als prvide black gwns fr mters - mst lecturers and prfessrs will wn ne, which they may be willing t lan fr a mt. These are ften hard t fasten, and tend t get in the way, but d create a curt like feeling fr the prceedings. Cards r sheets? One f the great dilemmas fr the nvice mter is hw t make ntes fr the presentatin. Many first time mters will write their presentatin ut in full n A4 sheets f paper. This is nt recmmended, fr a number f reasns. If the whle speech is written ut, it is t tempting t simply read it t the judge, with yur head buried in the paper, ften speaking far t fast. It is als hard t lcate specific infrmatin n the sheets if the judge asks a questin in the middle f the speech. Interruptins frm the judge can result in mters lsing their place n the page, causing an uncmfrtable silence whilst the mter tries t find it again. 22

24 My recmmended methd is t learn yur speech and use bullet pints n a small number f cue cards (small, 1/4 f A4 sized cards). This may, hwever, prve quite difficult fr the nvice r beginner. It is advisable t try and summarize yur speech as much as yu can when yu make a nte f it, and always t use cards rather than paper. Yu can put fact summaries fr cases n individual cards, and each pint f argument n a separate card. This means that yu will avid paper shuffling. Sme mdern mters use 'mind maps' which cnsist f circular blbs all n ne sheet f paper, each with ne pint f argument written in them. It's all a bit 'new age', but if these wrk well fr yu, then use them, but make sure the writing is large enugh s that yu can use the sheet withut reading frm it all the time. Giving the speech Being a mter is a bit like being an actr, in that t be really successful, yu must thrw yurself int the rle f an advcate. Certain speech and behavir is nt acceptable in a curtrm, and equally shuld be avided when mting. Remember the frmalities f curt etiquette discussed abve, and when giving yur speech yu shuld particularly take care t avid the fllwing: cllquial speech - such as 'yeah', 'kay', 'cheers', 'mate' Sit whilst either f the judges talk t yu, and stand up when yu talk t the judge. Mts befre Internatinal curts may be a little different depending n its relevant rules. Talking ver the judge - never argue r talk ver the judge. Wait until the judge has finished befre putting frward yur wn pints Mters shuld als nte hw t address thers in the curtrm, which is dealt with in the previus sectins. As fr any public speaking, speak slwer than yu think yu need t, luder than yu think is required, and clearly. Always keep up eye cntact with the judge, and watch fr signals frm him 23

25 r her. Des the judge understand? Des the judge need yu t pause? If unsure, ask: 'My Lrd, may I cntinue?' Dn't frget t keep an eye n the Bailiff fr purpses f time management. Depending n the rules f yur mt time may be strictly limited, r ging ver the time may result in the judge being asked t take the excess int accunt when making his decisin. Either way, it pays t keep t time. The fllwing may be excluded frm the timing f the speech in sme variatins n the mting rules: answers t judicial questins summarizing the facts f the case (if the lead appellant's r applicant is directed t d s by the judge) It is always sensible (but nt always realistic!) t rehearse and time yur speech in full befre the mt. Judicial Questins Yu shuld always try t answer questins frm the judge as and when they are asked. D nt tell the judge that yu will get t it later - this will usually anny the judge. Depending n the mting rules that apply, answering questins may smetimes be included in the speech timing, giving yu limited chance t give the judge a full answer and at the same time using it t make yur case. If the judge has defeated yur argument, then admit it. Yu culd say smething like: 'Yes. I am grateful t yur Lrdship.' Hwever, if yu feel the judge has misunderstd the pint, then it is ften wrth persisting, by referring the judge again t the relevant authrities and restating yur pint. Sme judges like t test whether the mters can stick t their guns under pressure. If yu cannt answer a questin, say s. A respnse such as: 'My Lrd, I am unable t assist n that pint, since I have nt read the relevant authrity' will ften be sufficient, but be prepared fr a judicial rebuke! 24

26 Respnding and the appellants' right t reply Elementary Guide t Mt Curt by Lucky M. Mgimba One thing that is ften frgtten abut the respndents is that it is their jb t respnd t the arguments f the appellants r applicants. This means that the respndents' arguments cannt be fully pre-prepared. The respndents shuld listen carefully t the pints which the appellants are making, and then try t respnd t each in turn. The respndents shuld spend the appellants' speeches hastily scribbling dwn the pints they will make in respnse. Much can be pre-prepared by anticipating the arguments f the appellants, but a gd mter will still listen t the appellants fr anything new. Again, in the appellants' right t reply (rebuttal), the appellants shuld nt repeat their earlier arguments, but shuld restrict themselves t dealing with the pints raised by the respndents. CONCLUSION T this extent, It s my great hpe that this article will assist many law students wh in ne way r the ther will be glad t extend the cmpetence f their law degree thrugh mting. Mt Curt cmpetitins prvide valuable educatinal and life experience fr the Law student participating. Participatin in mt curt enhances student s research, writing, ral and analytical skills. It teaches them t cmmunicate mre effectively and t think quickly n their wn feet. Mt curt ften prvides law students with the invaluable experience f arguing in frnt f real judges, justices, and seasned practitiners. Summarizingly it teaches law students t g beynd the curse syllabi and be integrated in the real legal wrld where amng ther things the nly business is t win cases. 25