2015 HIGH SCHOOL MOOTING COMPETITION

Transcription

1 Bond University High Schools Mooting Competition 2 FACULTY OF LAW 2015 HIGH SCHOOL MOOTING COMPETITION PREPARATION MATERIALS 2

2 Table of Contents COMPETITION OVERVIEW MOOTING TOOL KIT... 3 WHAT IS A MOOT?... 4 COURTROOM ETIQUETTE... 5 ETHICAL DUTIES OF COUNSEL...5 Duty to the Court...5 COURTESIES...5 Where to sit...5 Stand Up/Sit Down...5 HOW TO ADDRESS THE COURT...5 HOW TO ADDRESS OTHER COUNSEL...6 CITING CASES AND AUTHORITY...6 HOW TO REFER TO JUDGES WHEN CITING CASES...6 WHAT TO WEAR...7 HOW TO CONDUCT YOURSELF...7 PRESENTATION SPEAKING...7 GENERAL...7 PROCEEDINGS IN COURT...8 APPEALS / MOOTS MOOTING SKILLS CHECKLIST...9 YOUR ARGUMENT...10 LIMITS OF ARGUMENT...10 WHAT IS EXPECTED OF YOU...10 PRESENTATION OF ARGUMENT

3 COMPETITION OVERVIEW The High School Mooting Competition is designed to share Bond Law s knowledge and skills in advocacy and oral presentation with your students that are interested in a career in law or to expand their horizons. For 2015, the regional rounds of the competition will be held in 10 locations: Gold Coast: Thursday 30 April Brisbane: Friday 1 May Canberra: Monday 4 May Adelaide: Tuesday 5 May Sydney: Tuesday 5 May & Wednesday 6 May Toowoomba: Tuesday 5 May Cairns: Wednesday 6 May Melbourne: Thursday 7 May & Friday 8 May Townsville: Thursday 7 May Rockhampton: Friday 8 May Participation provides students with the opportunity to: - be challenged by preparing, articulating and defending legal submissions - experience live courtroom environments - mount legal arguments before one or more judges - apply legal rules to realistic cases - gain insight into the workings of the legal system MOOTING TOOL KIT Visit to see our mooting toolkit videos, which can assist you with some guidance in preparation for your moot performance. 3

4 WHAT IS A MOOT? A moot is a legal argument based on a prescribed set of facts. Mooting is designed to teach and test a range of intellectual and practical skills, and to give you an insight into the operation of the legal system. Moots simulate as closely as possible the operation of a real court in our circumstances, the conduct of an appellate court. Participants in the moot must work with the facts and the law provided to them. You cannot make up additional facts or refer to materials (eg, statutes or other cases) that are not referred to in the materials. You must explain the relevant legal principles, illustrate the application of those legal principles to the facts and convince the court your client should succeed. Mooting has its origins in Kentish Laws of the 8th Century when moots were open-air meetings of the populace that discussed local affairs. The development of modern day mooting is closely associated with the development of the Inns of Court in England. The modern moot had developed its principal characteristics by the end of the 14th Century. Rashdall, in Universities of Europe in the Middle Ages (1936, Vol 3, pp ), records that moots trained pure intellect, encouraged habits of laborious subtlety, heroic industry and intense application. Mooting is different to debating. Mooting is not merely a display of verbal skills. It is an intellectual exercise that requires research, advocacy, teamwork and interaction with the audience (ie, the bench). In a moot, the content of the arguments and the ability to answer questions are more important than fluent verbal presentation. Remember, the object is to convince and persuade an informed audience that the combination of relevant legal principles and the facts give rise to a conclusion that favours your client. Communications skills are vitally important, but an effective advocate seeks to do more than make an impressive sounding speech. Adequate preparation is the key to a successful moot or court appearance. Anticipate all the legal issues. Identify the material facts and be familiar with the relevant cases. Try to anticipate the arguments for the other side. Figure out ways of rebutting those arguments. And don t be surprised when you are asked questions by the judges! Remember the six Ps: Proper preparation prevents particularly poor performance. 4

5 COURTROOM ETIQUETTE There are a number of matters of ethics and courtesies that apply generally in all courts of law. Some of these are as follows: ETHICAL DUTIES OF COUNSEL Duty to the Court Perhaps the most important aspect of the role of a lawyer/barrister is his/her duty to the court a duty to assist the judge and conduct his/her case honestly. This means that you must never suppress information, even if it is damaging to your case. You should never ignore a relevant precedent, even if it goes against your case. Since you must advise the court of such cases, it is often better to distinguish them up front and argue why they should not be followed. Where your duty to your client (to try to win) conflicts with your duty to the court (to disclose damaging matters) the latter duty overrides the former. You are not just a hired gun. You are an officer of the court with higher duties. COURTESIES Where to sit Counsel for the Appellant sit on the right of the bar table (ie, to the judge s left). Counsel for the Respondent sit on the left of the bar table (ie, to the judge s right). Stand Up/Sit Down Whenever you are addressing the judge, you should stand. If opposing counsel stands to make a submission during the course of your address, you should sit down. This avoids the danger that counsel will argue between themselves rather than courteously addressing the court. It should not be necessary in a moot to interrupt opposing counsel. If the judge directs a question to a barrister who is not presently standing, take the cue and sit if you are standing. Conversely, you should stand if you are the one addressed in this instance. HOW TO ADDRESS THE COURT The correct term to be used when referring to a judge is Your Honour (although Tribunal Members are addressed as Member ). You can also address the Court in a neutral sense eg, If the Court pleases. When appearing before a Court made up of more than one judge, you may use phrases such as If the Court pleases, If it pleases the Bench, Your Honours. 5

6 HOW TO ADDRESS OTHER COUNSEL Opposing counsel is referred to as My friend, or My learned friend. The other advocate on your team is referred to as My learned colleague. CITING CASES AND AUTHORITY When citing cases to the court, the full reference to the case should be quoted unless you seek leave from the court to dispense with full citations. For example, the correct way of citing the case Bloggs v Bloggs [1989] 2 All ER 324 is as follows: Bloggs and Bloggs, 1989 volume 2 All England Reports at page 324. You should check the complete citation of cases to which you intend referring before coming to court. (Note that in civil matters the v is referred to as and while in criminal cases, v is referred to as against.) You can seek leave from the court to dispense with full citations at the commencement of your submissions. The court is more likely to grant leave where it has been provided with a brief outline of your argument, and a list of cases (with the correct citation) upon which you will be relying. HOW TO REFER TO JUDGES WHEN CITING CASES Australian Judges: They are referred to by their full titles eg, Mr Justice Dixon or the Chief Justice, Sir Garfield Barwick not by their abbreviations such as Dixon J or Barwick CJ. It should be noted that Chief Justice Barwick is permissible. Likewise where a Chief Justice is not knighted, the Chief Justice is referred to as Chief Justice X. English Judges: There are two classes of appellate judges in England. The Lords of Appeal in Ordinary are the most senior judges who, historically, were appointed to the House of Lords, the upper house of the British parliament, to exercise its judicial functions (until the Supreme Court of the United Kingdom was established in 2009 to assume the judicial functions of the House of Lords). A Lord of Appeal in Ordinary is referred to as Lord [name] (unless he or she is of higher rank, like a Baron). Some Lords retain their own name (eg, Lord Atkin ), while others include a reference to a place in their title (eg, Lord Morton of Henryton ). You should check by looking at the report itself or some reference work to see if the Lords have a territorial title (eg, Lord Bridge of Harwich ). Judges of the Court of Appeal who are not peers of the realm are Lord Justices of Appeal (LJ) and are referred to as Lord Justice [name]. Confusingly, some judges of the Court of Appeal are also members of the House of Lords, although they are not Lords of Appeal in Ordinary (in other words, they are entitled to sit in the House of Lords but they do not participate in judicial proceedings with the Lords of Appeal). Lord Denning, Britain s most famous judge of the last century, was a member of the 6

7 Court of Appeal and the House of Lords, although he did not sit as a Lord of Appeal in Ordinary throughout most of his career. If a judge has a title it is best to use that title eg, Brett MR should be referred to as The Master of the Rolls, Sir Balliol Brett. If the judge s full name and title are not known, refer to a reference work to determine that information. WHAT TO WEAR Appropriate dress is required for addressing a court. If not properly attired, a judge may respond by saying I do not see you or I cannot hear you. This really means the judge does not think your attire is suitable. Generally dark clothing is preferred, suits and ties for men and business skirts and jackets for women. Barristers would ordinarily wear their characteristic gown and wig. For the purposes of the mooting competition, you should wear your school uniform. HOW TO CONDUCT YOURSELF It is important that you retain complete self-control during the course of proceedings. If you wish to persist in disagreeing with a judge, it is generally accepted that you do so by prefacing any contrary remark with With respect, Your Honour... or indeed, if the point is taken further, With the greatest respect, Your Honour.... If the judge continues to disagree with you in a moot it may be a hint to drop a poor argument and move on to something more useful. PRESENTATION SPEAKING Speak clearly and loudly enough for the court to hear you. Do not read your submissions: be prepared to speak about the case from point form notes. Be prepared to answer questions from the Bench and know your cases well. Remember, during a moot, you will have a dialogue with the court, rather than presenting a speech. Emphasise strong arguments rather than attempting to cover everything. Remember you are acting as an advocate. Do not use the personal phraseology, I think... or It is my opinion.... Rather, use the neutral: It is submitted... or It is suggested.... GENERAL Be thoroughly prepared, do your best, and most of all, have fun. 7

8 PROCEEDINGS IN COURT 1. Court Clerk will announce that the court is ready Silence! All stand, please. 2. Judge enters and bows all bow. When the judge is seated, the rest of the court may sit down. 3. Court Clerk will then announce that the court is sitting and state the case for hearing, as in Bloggs and Bloggs. 4. Senior Counsel for the parties will then announce their appearances starting with counsel for the appellant: If Your Honour pleases, my name is Smith and I appear with my learned colleague, Bates, for the appellant. Senior Counsel for the respondent then follows in a similar fashion. If you have any written submissions, you can seek leave when you make your appearances for your instructing solicitor (or junior counsel, if you do not have an instructing solicitor) to approach the bench with the submissions. You should provide a copy of the submissions to your opponents. APPEALS / MOOTS 5. Appellant s counsel will proceed to argue the case. Each student on that side will have ten (10) minutes to make his/her submissions. 6. Respondent counsel will then open the Respondent s case. Each student will have ten (10) minutes to make his/her submissions. 7. The bench may retire to consider the matter. If so, the court will be adjourned all stand while the judge(s) leave. 8. The bench will return all stand and bow. 9. At the end of the moot, the judge(s)/academic(s) will discuss your performance, time permitting. Moots are always cases before a superior court where there are no witnesses or jury. 8

9 MOOTING SKILLS CHECKLIST (JH Wade; adapted from N Gold (ed) Learning Lawyers Skills (1989) p 307) OPENING CONCLUSION Stands as judge enters, then bows Introduces self Introduces partner Explains who acting for Checks that judge has written submissions Succinctly states overview of facts and issues Clearly identifies if facts are missing, unclear, or presumed Explains clearly the only or alternative conclusion(s) judge is being asked to reach Explains division of issues between partner and self Summarises with flourish in point form GENERAL Sits when opposing counsel is speaking Speaks from memory or outline; does not read Speaks at appropriate pace Good pitch and clear diction Culturally appropriate language Eye contact with judge No distracting behaviour Effective use of gestures CONTENT Quotes rule allegedly applicable; cites judge and page number; speaks slowly Makes submission based on that rule Listens carefully to judicial questions Is prepared to respond to predictable counter-punches (eg, Isn t that case distinguishable? ) Checks to see if judge s questions are answered to judge s satisfaction Has appropriate strategies when stuck 9

10 YOUR ARGUMENT LIMITS OF ARGUMENT In preparing their argument, counsel must limit themselves to the materials provided, including the cases whose web addresses have been provided in the statement of facts. Reference may be made to other cases cited in those cases, but only to the extent that they are cited, quoted or referred to therein. WHAT IS EXPECTED OF YOU Each team is required to prepare a written summary of argument outlining the submissions they will make. The essential feature of a summary is that it lays out in logical sequence the line of argument that is to be presented and the authority for each proposition of law that is to be argued. Counsel should anticipate being energetically questioned by the Bench about their case and are expected to be able to respond logically to the questions asked and comply with directions given (eg, I do not wish to hear you further on that point; tell me about the law regarding course of employment ). They must be prepared to resume their argument when the Bench has been satisfied on a particular issue. PRESENTATION OF ARGUMENT Both counsel should be prepared to speak for ten minutes. Where an advocate is interrupted by questions from the Bench, he or she will be expected to adjust the submissions to conclude within the allotted time. You may not seek extra time because of questions. 10