UNSW Law Society

Mooting Handbook
2013
Contents

Contents.................................................................................................................................... 2
Introduction ............................................................................................................................. 4
What Is Mooting? .................................................................................................................. 4
Why Moot? ............................................................................................................................ 4
Preparation Process for a Moot ............................................................................................. 4
Competitions Offered by LawSoc ......................................................................................... 5
Approaching Problem Questions ........................................................................................... 5
Analysing the Problem .......................................................................................................... 5
Noting the Grounds of Appeal .............................................................................................. 5
Knowing the Facts for the Moot ........................................................................................... 6
Research ................................................................................................................................... 6
Stages of Research ................................................................................................................ 6
How to Use Cases ................................................................................................................. 6
Whether Cases Are ‘Binding’ ............................................................................................... 7
Whether Cases Are ‘Good Law’ ........................................................................................... 7
Legislation ............................................................................................................................. 8
Resources .............................................................................................................................. 8
Preparing Case Briefs ............................................................................................................ 8
Written Submissions ............................................................................................................... 9
Components of Written Submissions .................................................................................... 9
Structure of a Submission Point ............................................................................................ 9
Consistency between Senior and Junior Submissions......................................................... 10
Length of Submissions and Number of Cases to Cite......................................................... 10
Sending in Submissions ...................................................................................................... 10
Amending Submissions after Submission ........................................................................... 10
Citations ................................................................................................................................. 11
Authorized, Unauthorized and Unreported Citations .......................................................... 11
Pinpoint Citations ................................................................................................................ 11
Footnotes vs In-Text............................................................................................................ 11
Pre-Moot Preparation ........................................................................................................... 12
Punctuality........................................................................................................................... 12
Formal Clothing .................................................................................................................. 12
Obtaining Casebooks........................................................................................................... 12
Seating Arrangement ........................................................................................................... 12

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Procedure for the Moot......................................................................................................... 13
Structure of a Moot ............................................................................................................. 13
Judges’ Entrance ................................................................................................................. 13
Appearances ........................................................................................................................ 13
Oral Submissions ................................................................................................................... 14
Structure of Submissions ..................................................................................................... 14
Sticking to Written Submissions ......................................................................................... 14
Preparing Oral Submissions ................................................................................................ 14
Formality ............................................................................................................................. 15
Signposting .......................................................................................................................... 15
Citations in Oral Submissions ............................................................................................. 15
Avoiding Excessive Reading .............................................................................................. 16
Time Management............................................................................................................... 16
Presentational Matters .......................................................................................................... 16
Eye Contact ......................................................................................................................... 16
Voice ................................................................................................................................... 16
Body Language ................................................................................................................... 16
Answering questions ............................................................................................................. 17
Taking Your Time ............................................................................................................... 17
Answering Directly and Signposting .................................................................................. 17
If You Cannot Answer ........................................................................................................ 17
Departing from Your Submissions ...................................................................................... 18
Deference to Judges ............................................................................................................ 18
Appendices ............................................................................................................................. 19
Appendix A: Authorized Report Series .............................................................................. 19
Appendix B: Case Briefs ..................................................................................................... 19
Appendix C: List of Mooting Expressions .......................................................................... 20

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Introduction
Welcome to the UNSW Law Society Mooting Handbook! The Law Society Competitions
portfolio has prepared this guide in order to provide an introduction to mooting for those
approaching it for the first time, and to help competitors at all levels of experience in
improving their mooting technique. It is the work of Guy Baldwin, James King and Emily
Burke.

What Is Mooting?

A moot is a simulated court hearing. Competitors receive the facts of a fictitious legal dispute,
and are assigned a side of it to argue. Taking on the role of barristers, they research the facts
and prepare legal arguments for their party. The competitors present these arguments before
judges, first putting them in written form (‘written submissions’), and then orally in the moot
itself (‘oral submissions’).

The scenario will usually involve an appellate hearing, that is, an appeal from the finding of a
lower court. Hence, the two sides in the moot will be the ‘appellant’, who will argue for the
decision on appeal to be overturned, and the ‘respondent’, who will argue for it to be upheld.

A moot differs from a debate or a speech in that it involves a dialogue between competitors
and judges, in which the bench may interrupt and ask questions of counsel throughout. It is
better thought of as a formal conversation. Ultimately, judges will select a winner for the
moot on the basis of which side argued more persuasively, taking into account scores for both
written and oral submissions.

The exact format of the moot will depend on the rules of the mooting competition. At UNSW,
students work in teams of two. Each team speaks for 40 minutes, dividing this time between
the two team members, who are called ‘Senior Counsel’ and ‘Junior Counsel’ respectively. In
external mooting competitions, the speaking time may be lengthier and larger teams
permitted.

Why Moot?

Mooting is an excellent way to develop skills of legal research, analysis and presentation,
both oral and written, and knowledge of core areas of law. Employers look upon it favourably
as enhancing skills that are crucial for legal practice. It’s also a lot of fun, and a chance to
form lasting friendships. Last but not least, the internal mooting competitions held at UNSW
serve to train participants to undertake national and international competitions on behalf of
the university.

Preparation Process for a Moot

At UNSW, moot preparation takes place in the following sequence:

1. On day 1 at 9 pm, the problem will be emailed to competitors and judges, and
competitors informed of whether they are appellant or respondent.
2. On midnight of day 3, written submissions are due to be emailed to judges, opponents
and the coordinators.
3. On day 4 at 6 pm, the moot itself is held.

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Competitions Offered by LawSoc

In 2013, LawSoc is offering three divisions of mooting:

• Beginners Mooting is an entry-level mooting competition held in the law of torts, and
available to all first-year legal students: JDs and undergraduates, and transfer students
in their first year of law (regardless of their year in the other degree).
• Intermediate Mooting is a mid-level mooting competition held in contracts and
criminal law, and available to undergraduates in their second year of law. In addition,
first-year JDs beginning in second semester may be admitted. To compete, the student
must not have completed all of the following; Contracts 1 (LAWS1071), Contracts 2
(LAWS1072), Criminal Laws 1 (LAWS1001) and Criminal Laws 2 (LAWS1011).
• Senior Mooting is an upper level competition. It may be held in property, equity,
administrative law, business associations and constitutional law, though students need
not have taken these courses beforehand. Topics may also arise from lower divisions.
Intended for third-year undergraduates and second-year JDs and above, it is available
to any student who is ineligible for the lower divisions.

Note that these divisions are tailored to different stages of progression through the law
program, rather than the degree of prior experience at mooting. First-time competitors
shouldn’t be dissuaded by the names of the competitions from participating in Intermediate
and Senior: newcomers have been very successful in both competitions in the past.

Approaching Problem Questions

As a moot is based on facts, the importance of reading the problem scenario carefully cannot
be overstated. A keen eye for particular factual details may open up or close entire lines of
argument, potentially deciding the outcome of the moot.

Analysing the Problem

On a first reading an attempt should be made to identify likely legal issues and important
facts. However, as a good understanding of the significance of all facts generally will not be
possible until some research has taken place, re-reading the facts and repeating this process
after undertaking research will be necessary.

It’s wise to try to think of arguments that both sides of the moot may make, since anticipating
opponents’ arguments will be crucial to developing one’s own. For example, if, in a contracts
moot, an obvious argument for the failure to form a contract is uncertainty, the side arguing
that a contract was formed should seek to address this issue in their own submissions.

Noting the Grounds of Appeal

At the end of the problem the ‘grounds of appeal’ will be specified. These are the points in
dispute between the parties in the appeal. What this means is that you are restricted to making
arguments to prove or disprove these grounds. Additional arguments, even if open on the
facts, cannot be introduced. For instance, if the availability of a specific defence for a criminal
law offence is not a ground of appeal, it is not possible to make submissions on it.

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The first step you’ll usually take will be to divide the grounds of appeal among your team, so
that each of you can begin research on your half of the problem. This should be done quickly,
given the limited time for preparation.

Knowing the Facts for the Moot

It’s important to know the fact scenario well by the time the moot takes place. You may be
quizzed by your judges on any aspect of the facts in the course of making oral submissions.
When citing facts in their oral submissions, you should be able to direct your judge to the
exact page and paragraph number where they are found, so it is helpful to include paragraph
references in notes. It may also help to make a fact summary noting key events and details
and their paragraph reference.

Research
Unlike competitions such as debating, arguments in a moot take place within a framework of
law. Submissions must be supported by ‘authority’, that is, case law or legislation. It is
necessary to engage in research to adduce this material.

Stages of Research

It is helpful to distinguish two stages of research that take place after receipt of a mooting
problem:

1. General familiarization with the area of law.

2. Research into specific legal issues.

The first will involve acquiring an understanding of the area of law which the relevant
grounds of appeal deal with. Before undertaking this it may be difficult to identify the issues
at stake in the problem and the possible arguments that may be run. Useful resources for this
stage of research will include law textbooks and encyclopedias (such as LexisNexis’s
Halsbury’s Laws of Australia, or Lawbook’s The Laws of Australia).

After familiarizing yourself with the area of law, you should return to the problem and
attempt to list the issues in contention and the arguments that may be made. At that point,
more detailed research to address these particular issues and arguments will be possible. This
research will primarily involve case law, as it is usually the only form of authority that may be
cited in UNSW mooting (although legislation will occasionally be permitted).

Textbooks, encyclopedias and scholarly articles may be helpful in identifying the relevant
cases to find, and alerting competitors to the current debates surrounding the area.

How to Use Cases

Generally speaking, there will be two types of useful cases for a moot. The first is leading
cases that offer definitive statements of relevant principles. These will be widely cited, and
usually decided at High Court level. They should be used in order to support broad statements
of rules in submissions. For example, Wyong Shire Council v Shirt (1980) 146 CLR 40 is the

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leading case for breach of duty of care in the law of negligence, and can be cited for such
propositions as the reasonable person test.

The second kind is those with facts similar to the problem question, allowing analogies to be
drawn. The thrust of your argument will be that the present case is substantially the same as
the case cited and therefore the result in that the present case should follow (or ‘apply’) the
decision in the one cited. Conversely, if you are trying to avoid the application of a factually
similar decision, it will be necessary to draw a distinction with (or ‘distinguish’) it to show
why it should not be applied.

Note that you should look at all relevant cases, including those that are detrimental to their
side. If a case is detrimental and relevant, it is often necessary to address it and distinguish it
from the facts in the problem, rather than simply ignoring it. Failing to address a case will
leave a hole in one’s argument if the opposing side makes use of it.

Whether Cases Are ‘Binding’

When researching cases, it will be important to notice whether a case is ‘binding’ on the court
hearing the moot. If it is binding, then the court will have no choice but to apply it if the facts
are on all fours (the same) or the ratio (rule) of the case is applicable.

The general rule is that the decision of a superior court will be binding on all inferior ones in
the same hierarchy: for example, a High Court decision will bind the Court of Appeal of the
Supreme Court of NSW, while a Court of Appeal decision will bind a single judge sitting in
the Supreme Court, whose decision would in turn bind the District Court, and so on. The
court in which the moot is being held will be specified in the fact scenario.

A further rule is that decisions of intermediate appellate courts (such as the NSW Court of
Appeal) are binding on other intermediate appellate courts (such as the Victorian Court of
Appeal) unless found to be ‘plainly wrong’: see Farah Constructions v Say-Dee (2007) 230
CLR 89. In addition, the High Court will generally not depart from its own previous
decisions, although it has the power to do so: see Wurridjal v Commonwealth (2009) 237
CLR 309.

If a case is not binding (for instance, it is from a lower court, or is an international case), it is
‘merely persuasive’. It is still worth citing if you lack binding authority for your position, but
generally it will be necessary to argue why, as a matter of policy, the authority should be
followed.

Whether Cases Are ‘Good Law’

It is important to notice whether a case has been approved or disapproved in later cases. For
instance, a case that has been overturned will no longer be ‘good law’ and cannot be cited in
support of a legal proposition. A case that has not been overturned but which has been
questioned in later decisions may not constitute strong authority.

To check the treatment of a decision, examine the citator document for the case in
LexisNexis, Lawbook or Westlaw. This tells you both what cases the case referenced, and
what cases have referenced the case; hence, it will be possible to see whether or not your case
has been cited (ie, referred to), followed or overturned by other cases.

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Legislation

Recourse to legislation is generally not permitted in UNSW mooting in order to avoid undue
complexity. When this is not the case, the mooting problem will specify the particular pieces
of legislation that may be used, so it will not be necessary to search generally for relevant
legislation as it is with cases.

Resources

There are a number of resources available to help you find relevant cases and legislation.
Particularly useful are the following online tools:

• Lawbook/FirstPoint - Lawbook is generally the most useful resource for cases as it

has Commonwealth Law Reports, NSW Law Reports and Federal Court Reports. It is
accessible through Sirius on the UNSW Library website.
• LexisNexis/Casebase – LexisNexis is particularly relevant for the Australian Law
Reports and certain English cases. Note that the ALRs are less authoritative than
CLRs and should be used as a second resort (see below). It is accessible through Sirius
on the UNSW Library website.
• Westlaw – Westlaw is a good source for English cases, particularly old ones that
cannot be found on other websites. It is accessible through Sirius on the UNSW
Library website.
• Austlii – Austlii is a good source for legislation and unreported decisions. It shouldn’t
be used when a reported decision is available from one of the above sources. It is
available at http://www.austlii.edu.au.
• Halsbury’s Laws of Australia (LexisNexis). This legal encyclopedia is a useful
starting point that provides a succinct, clear overview of the law and what the leading
cases are. To access it, go to LexisNexis in Sirius and select Halsbury’s Laws of
Australia.

Preparing Case Briefs

Judges may question competitors on any cases they cite (this is one reason not to cite
excessively large numbers of cases). Hence, it will often be helpful to fill out a simple table
with crucial facts for each case cited, and bring it to the moot, although this may not be
necessary if the material can be remembered. Relevant facts to include for each case may be
found in Appendix B.

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Written Submissions
Written submissions are an explanation of a team’s arguments. Their purpose is to notify
opponents and judges of what the team will be arguing ahead of time. They should be set out
systematically, as a series of arguments addressing the appeal grounds, and be as detailed as
possible while remaining succinct.

Components of Written Submissions

Written submissions comprise the following:

• A title page. It must contain: the name of the matter and its number (this can be found
at the top right of the problem scenario), the court the matter is being held in, the
names of the parties (labelled appellant and respondent), and the names of counsel
(team members).
• A summary of submissions. This will list briefly each submission, usually as one
sentence each.
• Numbered submission points. The team’s arguments set out in detail. In general,
these points should be consistent with the grounds of appeal. For example, if there are
four grounds of appeal, there should be four submissions, with each submission
addressing a single appeal point.
• Orders sought. The result which the party seeks to achieve: usually that the appeal be
dismissed with costs (respondent), or that it be allowed with costs (appellant), with a
consequence for the lower court decision (that it be overturned or upheld).
• A list of authorities. At the end of your submissions you should create an
alphabetized list of all the cases your team has used.

Note also that it is important to number the pages of your written submissions.

Structure of a Submission Point

Within each of submission it is necessary to set out the following:

1. The proposition to be proved (eg, ‘John owed Michael a duty of care on the basis of
occupier’s liability’).
2. A statement of the law with authority (eg, ‘An occupier of land will owe an entrant
a duty of care: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479’).
3. The application of the law to the facts (eg, ‘John is the owner of an IGA
supermarket where MIchael was shopping when he was injured’).
4. A conclusion (eg, ‘Therefore John owed Michael a duty of care’).

In step 3 it may also be relevant to draw factual analogies with an existing case. An example
is the following: ‘In the case cited an apportionment for contributory negligence of 60% was
found on the sole basis of the plaintiff’s consumption of 10 beers prior to driving. It therefore
follows that in the present case, where the plaintiff had consumed an equal amount of alcohol,
and was low on sleep, that at least as high an apportionment is appropriate’.

The length of each of these elements will depend on the argument in question. For instance, it
may be necessary to set out more the law in more than one paragraph, if it is complex.

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Consistency between Senior and Junior Submissions

It is important to ensure that the combined junior and senior submissions are consistent, even
though they have been prepared by different people. In particular, a substantive inconsistency
– a contradiction in arguments, understanding of the facts or statement of the law – between
the two halves of submissions should be avoided by ensuring the two team members
communicate throughout the preparation process.

More mundanely, it’s important to ensure the formatting and submission numbering match. It
will also be helpful to try to harmonize the writing styles between the two halves of the
submissions as much as possible so that the transition between writers is not jarring.

Length of Submissions and Number of Cases to Cite

There are no specific rules on the length of submissions, but since in internal mooting the
problems tend not to be very complex, submissions usually need only be around 2–5 pages
long at point 12 font (excluding title pages and references).

Similarly, it is generally not necessary to cite a large number of cases. For most moots, each
counsel should cite no more than three or four cases for their submissions depending upon the
problem (hence, a maximum of six to eight cases for the team). Some problems may require
more than this and others less. You should avoid redundancy by citing only the best (most
senior or commonly cited) authority for a proposition, rather than multiple cases for the same
point.

Sending in Submissions

You must email your submissions by midnight the night before the moot to the judges, the
opposing team, and the coordinators of the competition. Failure to send written submissions
on time will incur penalties and possible forfeiture. The penalties are detailed in the mooting
rules.

Amending Submissions after Submission

You should generally avoid amending written submissions after the submission deadline as it
looks unprofessional. Minor issues, like typos, should be overlooked as the detriment in
amending would be greater than the advantage. Conversely, judges’ permission is required for
any amendment, and it is unlikely to be granted if competitors seek to make any significant
changes that subvert the submission deadline.

However, if you make a serious mistake that does not require a wholesale change to your
submissions to correct, the procedure is to email an amended version of your written
submissions as soon as possible (to your judges, the opposing team, and the competition
coordinators). In addition, you should bring hardcopies of the amended submissions for the
judges and opposing team to the moot.

You’ll then need to seek leave from the bench at the beginning of the moot during
appearances to amend your submissions. It is necessary to wait until appearances are
complete, and then say, for example: ‘Your Honours, with the court’s leave we seek to amend
our written submissions. We have [number] amendments: the first, at the [bottom/middle/top]

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of page [number] should read [substitution] ... Are your Honours prepared to allow these
amendments?’

Citations
You should ensure case citations (and legislation citations, when permitted by the facts)
comply with Australian Guide to Legal Citation, available here:
http://www.law.unimelb.edu.au/files/dmfile/FinalOnlinePDF-2012Reprint.pdf.

Authorized, Unauthorized and Unreported Citations

It is important when citing cases to use an authorized report series in preference to an

unauthorized or a medium neutral citation if an authorized report of the case exists. An
authorized report series is one that has been approved by the court in question prior to
publication, whereas an unauthorized one has been published by a third party without this
checking. It is therefore considered to be more reliable. An example of an authorized report
series is the Commonwealth Law Reports (example: a citation in the form Australian Safeway
Stores v Zaluzna (1987) 162 CLR 479): see Appendix A for a comprehensive list.

Competitors should cite an unauthorized series when there is no authorized series to use
(example: the Australian Law Reports for certain cases, such as Momentum Productions Pty
Ltd v Lewarne (2009) 254 ALR 223). It will be possible to determine what reports are
available by looking up the case in a database like Firstpoint, which will list all citations.

A medium neutral citation – the form of citation used by the court itself – will be appropriate
only when the case is unreported, that is, it does not appear in either an authorized or
unauthorized series (for instance: R v De Gruchy [2006] VSCA 10). Where a decision is
unreported and also lacks a medium neutral citation, it should be cited in accordance with
Australian Guide to Legal Citation rule 2.8.2 (you’re unlikely to come across one of these).

Pinpoint Citations

You must use a pinpoint citation when citing a case (ie, to refer to the page and name of
judge).

Footnotes vs In-Text

There are two ways of citing cases: with footnotes, or within the body of your submissions.
An example of an in-text citation is as follows: ‘First, a duty of care requires that the
Respondent take reasonable care to avoid a foreseeable risk of injury to the class of persons to
which the Appellant belongs: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR
479, 488 (Mason, Wilson, Deane and Dawson JJ).’ However, footnotes often produce more
readable submissions.

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Pre-Moot Preparation

Punctuality

On the night of the moot, it is best to aim to arrive at the room about 15 minutes early so as to
have time to settle any nerves. It’s unprofessional to be late for a moot in the same way that it
is for a real court appearance.

Formal Clothing

Like in a real court, competitors are expected to wear formal clothing to their moots. This
generally means a suit for men, and similar work dress for women. Failure to wear formal
attire can result in a loss of points!

Obtaining Casebooks

Although this used to be the common practice, the Law Library no longer allows this. You
therefore do not need to bring any casebooks to your moot. You will not be expected to print
electronic copies of your cases, unless it is a highly unusual or unheard-of case with which
your judges are unlikely to be familiar. Even in that case, you need only print the sections
that are relevant to your arguments.

Seating Arrangement

Make sure the appellant or plaintiff team is sitting on the left, and the respondent or defendant
team is sitting on the right (from the perspective of the advocates). There will be a lectern
between the bar tables. Where a moot is held in a classroom, competitors may need to assist
judges in arranging tables for the moot.

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Procedure for the Moot

Structure of a Moot

The procedure for a moot reflects what happens in normal court proceedings. The moot will
take place in the following sequence:

1. Judges’ entrance
2. Appearances
3. Senior counsel for the appellant’s oral submissions
4. Junior counsel for the appellant’s oral submissions
5. Senior counsel for the appellant’s oral submissions
6. Junior counsel for the appellant’s oral submissions
7. Judges’ decision and feedback

Judges’ Entrance

Normally your judges will come into the room to check that you’re ready to start, and then
exit. Then the judges will knock on the door to signal that everyone in the room should stand
up as they enter the court. The judges will enter and walk to their seats. Before your judges sit
you’ll bow to each other, and then you can sit. The name of the case will be read: ‘In the
matter of [case name], this court is now in session’. Following this the judge will ask for
appearances from counsel.

Appearances

Judges ask for appearances so they can know the names of the counsel appearing before them.
It is important to wait until the judges call you. The expression used will generally be, ‘We
will now take appearances’. At this point the appellant senior will rise, walk to the lectern and
give appearances. After she takes her seat, the respondent senior will do the same

Appearances have a standard form. For example: ‘May it please the court, my name is Jones
Smith and I appear with my learned junior, James Flitwick, for the appellant, Elma Gantry, in
this matter. With your Honour’s permission, we will divide our time 20-20. I will deal with
the submission points regarding duty and breach, and my learned junior will deal with the
submission points regarding causation and remoteness.’ Note: this is the relevant time to ask
to amend submissions.

Appearances are an opportunity to make a good first impression and build rapport with your
judges. As such, do not bring a piece of paper to read your appearances from it. You’ll look
like an idiot who can’t remember your own name! Instead, speak confidently and maintain
eye contact throughout. After appearances, wait until the judges call upon the senior counsel
of the appellant to begin her submissions.

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Oral Submissions
Oral submissions are competitors’ chance to persuade the judges of their arguments in person,
and to allow them to ask any questions they have about them. In the Beginners Competition,
each speaker will present for 20 minutes.

Structure of Submissions

The Senior Counsel’s submissions have the following form:

1. Begins with ‘May it please the court’.

2. Gives a brief introduction of 2-3 sentences in which he states the pertinent facts of the
case (45 seconds).
3. Lists both his and his junior counsel’s submissions in a sentence per submission (45
seconds). Example: ‘We will make four submissions. First, [X]. Second, [Y]. …’ etc.
4. Oral argument (roughly 18 minutes).
5. Concludes with ‘May it please the court, those are my submissions’.

The junior counsel’s submissions have the following form:

1. Begins with ‘May it please the court’.

2. Lists his own submissions in a sentence per submission (45 seconds)
3. Oral argument (roughly 18 minutes)
4. At the end, states what orders his side is seeking (45 seconds). This will be either that
‘the appeal be allowed’ or that the ‘appeal be dismissed’, with the consequence of this
result. For example, ‘we ask that this appeal be allowed, the conviction of murder
quashed and a conviction of manslaughter substituted’.
5. Concludes with ‘May it please the court, those are my submissions’.

Sticking to Written Submissions

A team’s oral submissions will be based on their written submissions. It is not permissible to
make legal arguments in oral submissions that are absent from written submissions. The order
in which issues are addressed in oral submissions should also usually reflect the written
submissions, although this is not a strict rule.

Preparing Oral Submissions

You will generally want to write out a set of oral submissions as distinct from your written
submissions to use in the moot. These are normally in point form, but the approach can vary:
some competitors will bring long written arguments and prepared answers just in case they
get stuck. You’ll need to figure out what works best for you.

The main difference between writtens and orals is that orals are less dense and detailed, and
more clear and persuasive. In oral submissions you should be aiming to be as clear and
persuasive as possible, which often requires a degree of simplicity. With too many details,
your judge could become overwhelmed and lose sight of the bigger picture. However, the
judge may want to question you on a certain point, and it is then that you will have to go into
further detail, drawing from your written submissions, or going beyond them.

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Formality

A moot is a mock court hearing and thus formal language is used. It is important to avoid
colloquialisms: do not say anything like ‘yeah’, ‘I dunno’ or ‘kinda’. Don’t swear under your
breath either – judges can hear it! The most important expressions to bear in mind are:

• Say ‘may it please the court’ at the very the beginning and end of moots. You can use
‘if it please the Court’ elsewhere in the moot (eg, ‘If it please the Court, I’ll now turn
to my next submission’).
• When explaining what your argument is, you should use the expressions ‘we submit’
or ‘in our submission’. ‘I think’, ‘I feel’, ‘We’re arguing’, ‘We believe’ are not
acceptable. Note that it isn’t necessary to say ‘we submit’ when making an
uncontested statement about the facts or law: it is used only when highlighting the
contestable elements of your argument.
• Competitors should refer to their opponents as either appellant/respondent or ‘my
learned friends’.
• Competitors should refer to their partner as ‘my learned junior/senior’.
• When talking to one judge, refer to him or her as ‘your Honour’; for two or more,
‘your Honours’.

A list of court formalities may be found in Appendix C.

Signposting

Signposting means to give an indication of where your argument is headed before you make
it. It’s important to do this throughout the moot so as to make your submissions as clear as
possible. Begin by signposting at the very start, by listing your submissions (as discussed
above). The general rule is then to use an introductory sentence whenever you are about to
talk about something new that sets out the structure of the new point.

An example of signposting at the start of a breach of duty submission is the following: ‘I turn
now to my first submission, that the appellant breached his duty of care to the respondent. We
submit there were two breaches of care: the failure to erect a sign, and the failure to use mats
on the floor...’

Citations in Oral Submissions

When referring to your first case you will have to say what is called the full citation. For
example, for Kavanagh v Akhtar (1998) 45 NSWLR 588, 597, when seeking to rely on this
case counsel would have to say, ‘I rely upon the case of Kavanagh and Akhtar, reported in
1998 in volume 45 of the New South Wales Law Reports at page 588...’

After you have given your first full citation, you’ll be able to say ‘May I dispense with formal
citation?’, and your judges will usually allow you to do so. However, you will still have to
know the details of the cases you later cite in case you’re asked for them.

When taking the judges to a particular quote, the expression to use is ‘May I take your
Honours to [full citation] to page 597 where Justice Mason wrote...’. It is also often useful to
tell the judge where on a page a particular quote is, for instance: ‘halfway down the page’; ‘at
letter g’; or ‘page 615 point 8’ (when the quote is eight-tenths of the way down a page).

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Remember that civil cases are cited as ‘Bryan and Maloney’, not ‘Bryan vee Maloney’; and
criminal cases: ‘The Crown against Bryan’, not ‘The Crown vee Bryan’.

Avoiding Excessive Reading

It’s important to avoid reading too much from your oral submissions. This will make it
difficult for you to hold much eye contact, which will limit your ability to ‘read’ your judge
(eg, know when they are getting bored and confused), as well as cost you marks for
presentation. It is also not really possible, as your judge will be interrupting you to ask
questions, which will trip up a competitor who is relying too much on a script.

Time Management

If you are going to speak for 20 minutes, figure out a way to present your oral submissions
within 12-13 minutes. It’s highly likely the rest of the time will be spent answering questions.

When giving your actual submissions, keep an eye on the time so you know how long you
have left. Bring a watch or a stopwatch. Make sure that you know how to skim through and
also flesh out certain submissions depending on the time you have.

If you’re running out of time, ask for a 1-2 minute extension (‘Your Honour, may I request a
short extension of time of [x] minutes?’). Judges are more likely to grant this if they’ve been
subjecting you to heavy questioning.

Presentational Matters

Eye Contact

Competitors should endeavour to maintain as much eye contact with judges as possible. This
is particularly so during appearances and your introduction, when an initial impression is
formed. It may be worth memorizing your introduction so that you can give it without
checking your papers.

Voice

There are three relevant issues with an advocate’s voice: first, the importance of maintain a
confident voice and not disclose your nervousness or discomfort; second, to modulate your
voice so as to emphasise important points and provide some variety in your speech; and third,
to speak slowly and clearly so that judges have plenty of time to process the arguments you’re
making.

Body Language

As mooting is a more formal activity than giving a speech, it is important not to gesture
significantly as this may prove distracting: in general, only small gestures with one hand are
permissible. It is also important to maintain good posture so as to appear confident in your
submissions.

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Answering questions
Judges can interrupt you at any time to ask questions. Although often challenging, questions
offer an opportunity to engage with the concerns the judge has about your argument, or to
assist the judges in understanding the matter when they are confused.

Taking Your Time

It’s advisable to take your time and think your answer through before speaking. You can even
take up to 10 seconds to think about the question and what you might want to say. If you
didn’t understand or hear your judge clearly you can ask them to rephrase the question. If
you’re really stuck and you think your co-counsel would be able to help you can ask the
judges to confer with them (‘May I confer with my learned junior/senior for a moment?’).

Answering Directly and Signposting

Perhaps the most important aspect of question answering is to answer directly and concisely,
and signpost your answer. In particular, if asked a ‘yes’ or ‘no’ question, like ‘does the parole
evidence rule apply in this case?’ or ‘is it your submission that there were two breaches of
duty?’, give a ‘yes’ or a ‘no’ answer immediately and then explain further. Example: ‘Yes
your Honours, but it is our submission that that test should not be applied in this case for two
reasons...’.

Another way to signpost is to enumerate your answer, by saying something like ‘Yes your
Honour and that is for three reasons’, and go through each of those points.

Don’t waffle. Not only does this come across poorly to judges, it will take up time that you
should be using to complete your submissions.

If You Cannot Answer

If you cannot answer a question, it is better not to try to evade it. This is always transparent to
judges and will lose you marks. It is preferable to indicate politely that you are not able to
answer the question (although it is obviously preferable still to ensure that you can answer all
obvious questions about your submissions through good preparation).

The phrase ‘I’m unable to assist the court’ may be used if you cannot answer a court at all. If
you are stuck in a standoff, where a judge is resistant to one of your submissions but you need
to move on, or you cannot add anything substantive to what you have said, you may also use
the expression: ‘That’s the highest I can put it’ (also a last resort). If it’s the question is in
relation to a case, you can say, ‘I don’t have that case at my fingertips’. Note, however, that
each of these expressions is a last resort.

After having indicated that you are unable to assist the court, it may be possible to prevent
your judge from thinking you aren’t able to address legitimate problems with your argument.
For example, you can follow with a phrase like this: ‘Unfortunately I am unable to assist the
Court in that matter. However, the key question here is still whether or not...’.

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Departing from Your Submissions

When a judge asks you a question they will usually be moving you away from the structure
by which you planned to deliver your submissions. It is important to be able to be flexible
about your speech and go where the judge wishes to go. Even if you plan to deal with the
issue the judge is raising at a later point in your speech, you should briefly answer the
question now rather than indicating that you will do so later.

At the same time, remember that you have determined the particular points that you need to
deliver, and so attempt to answer the judge’s question concisely and then try to move
smoothly back to your own submissions. There is something of a balance to strike here. Be
careful not to make it seem like you’ve been interrupted rudely by the judge and are eager to
get back to the order of points you have set out. Equally, you don’t want to convey the idea
that you now cannot find your place in your submissions because of the interruption. To
prevent the latter, it is important to understand the structure of your submissions well.

Deference to Judges

Always defer to the judges, and never interrupt them. However, you are free to disagree to
with propositions judges put to you (they will sometimes even give you deliberately faulty
ones in order to test your understanding), but it’s important to be polite in doing so.

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Appendices

Appendix A: Authorized Report Series

Australian federal authorized report series are as follows:

• Commonwealth Law Reports (CLR) - High Court of Australia decisions
• Federal Court Reports (FCR) - Federal Court of Australia
• Administrative Law Decisions (ALD) - Administrative Appeals Tribunal
• Commonwealth Arbitration Reports (CAR) - Australian Industrial Relations
Commission
• Repatriation Pension Decisions (RPD) - Veterans’ Review Board

Australian state or territory authorized report series are as follows:

• Australian Capital Territory Reports (ACTR) - Australian Capital Territory Supreme
Court
• New South Wales Law Reports (NSWLR) - New South Wales Supreme Court since
1970
• The State Reports, New South Wales (SR NSW) - New South Wales Supreme Court
1901-1970
• Northern Territory Law Reports (NTLR) - Northern Territory Supreme Court
• Queensland Reports (Qd R) - Queensland Supreme Court
• South Australian State Reports (SASR) - South Australian Supreme Court
• Tasmanian Reports (Tas R) - Tasmanian Supreme Court
• Victorian Reports (VR) - Victorian Supreme Court
• Western Australia Reports (WAR) - Western Australia Supreme Court

The New Zealand Law Reports (NZLR) are the authorized report series for the New Zealand
Court of Appeal and High Court.

UK authorized reports series are as follows:

• Chancery Division (Ch D or Ch) - UK High Court
• Probate, Divorce or Admiralty Division (P or P D) - UK High Court
• Family Division (Fam D) - UK High Court
• Queen’s/King’s Bench Division (QB or KB) - UK High Court
• Appeal Cases (AC) - House of Lords or Privy Council

Appendix B: Case Briefs

Facts to include in case briefs are:

• Case name with full citation.
• Court heard in, and whether this court’s decision is binding on the present court.
• Brief summary of facts.
• Procedural history.
• Outcome (for example: 5:4, plaintiff/appellant won).
• Ratio (the key principle or principles the case is known for).
• Judge(s) who sat on the decision. (This includes both the names and gender(s) of
judge(s) - it look particularly bad to refer to a female judge as His Honour).

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 • Majority judgment(s) and reasoning.
• Minority judgment(s) and reasoning (it’s important to know if and why the judges
differed from each other).
• Dissenting judgment and reasoning (it’s important to know if and why the judges
differed from each other).
• When this case has been applied, cited, referred to recently - ie, year, name of case
applying your case, and court which applied/referred to your case. This goes to show
whether or not your case is good law.
• If case has been questioned/overturned - ie, year, name of case applying your case, and
court which applied/referred to your case. This goes to show whether or not your case
is good law.

Particularly when the case is not clearly binding, any policy arguments competitors think of in
support of or against the case being applied should be included in a case brief. However, in
some circumstances judges may inquire as to policy issues even if the case is binding.

Appendix C: List of Mooting Expressions

Mooting Phrase How to Use It Incorrect Form

May it please the court At the beginning or end of ‘Um’, ‘ladies and gentlemen’,
submissions, or in between ‘good afternoon’, etc.
submissions, as a polite
introductory phrase.

Your Honour To address a judge. ‘You’, ‘Sir’, ‘Madam’.

My learned friend To address the opposing counsel: ‘My opponent’, ‘the opposition’,
eg, ‘my learned friend suggested ‘him/her’, ‘she/he’, ‘my
that there was no breach, we colleague’.
submit...’

My (learned) junior/senior To refer to your co-counsel, eg, ‘My colleague’, etc.

‘my learned junior will deal with
that point.’

We submit To introduce any submission or ‘I think’; ‘I feel’; ‘I believe’; ‘it is

opinion to the court, eg, ‘we my opinion’, ‘I would argue’.
submit that Dr Steinberg
breached his duty of care’. Note:
Do not say “counsel submits”.

Take your Honour to...
To take the court to any ‘May I draw your Honour’s
document, such as a case, a attention to...’
statute, submissions etc, eg, ‘may
I take your Honour to Rogers v
Whitaker at page...’

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 Mooting Phrase
May I dispense with formal
citation?
That is the highest I can put it
Nothing turns on that
I cannot assist the court on that
matter
I will now turn to my first/next
submission
With respect your Honour
If I could be heard for a
moment longer...
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How to Use It Incorrect Form
Where the judge clearly does not
have or is not referring to the
authorities. Do not use as a matter
of course, but only where
appropriate.
Where the court refuses to accept ‘Your Honour, I don’t know what
a submission or an answer to a else to say, I have already told
question, and you cannot afford you my submission.’
to concede that point, but must
move on because of time, eg,
‘Your Honour, the highest I can
put it is that handing Ms
Rodriguez a brochure was not
enough and he ought to have
done more’. Note: Use sparingly,
if at all.
Where you wish to indicate that ‘That doesn’t matter.’
something is not relevant, eg,
‘that was a case about eye
surgery rather than cosmetic
surgery, but nothing turns on
that.’
Where you do not know the ‘I don’t know’; ‘Um.............’
answer to a question. Note: it is
your job to assist the court, so
avoid using this if you possibly
can, by being prepared.
To introduce a new submission. ‘My first point is...’; ‘the
first/next thing I wish to say is...’
To correct the bench or disagree ‘I disagree’; ‘You’re wrong.’
with them e.g. ‘with respect your
Honour that is not correct/not our
submission.’
Where the judge is pressing you ‘I need to finish my point.’
to move on but you are not ready
to do so (eg, if you have not
finished your submission), eg,
‘your Honour, if I could be heard
for a moment longer on the point
of breach of duty, we submit...’
Beginners Mooting Handbook
 Mooting Phrase
If your Honour is content to
accept that without further
submission
I withdraw that
I don’t press that point
I embrace/adopt that
On all fours
The authorities are all one way
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How to Use It Incorrect Form
Where the judge has indicated ‘Okay, if your Honour is happy
that he or she agrees with you and with that, then...’
does not need to hear your
submission, and you wish to
move on, e.g. ‘If your Honour is
content to accept without further
submission that there was a
breach of duty, I would move to
my submission on causation...’
To retract an incorrect statement, ‘Oops...’; ‘Sorry, that’s wrong’;
eg, ‘your Honour, in that case the ‘Can I take that back?’ etc.
High Court held – I withdraw that
– the Court of Appeal held...’
A graceful way of abandoning an ‘Oh well, don’t worry about that
argument or making a point, your Honour.’
concession, eg, after a question
revealing how weak your
argument is: ‘your Honour, I
don’t press that, but I would
move to my alternative
submission which is...’ NOTE:
Be sure to check that you can
afford to concede the argument.
If it is essential to your case, then
you cannot concede it, not matter
how gracefully.
Where you agree with a comment ‘I agree’; ‘That’s right, your
the judge has just made, eg, Q: ‘It Honour.’
seems to me that she fails on a
“but for” analysis’; A: ‘I adopt
what your Honour says and this is
why we submit the ‘normative’
test should be rejected.’
Where a case is factually ‘That case is the same as this
identical to another one and raises one.’
the same issues in the same way,
eg, ‘your Honour, Rogers v
Whitaker is on all fours with the
present case because...’
Where all cases say the same ‘All the cases say the same
thing on a particular point, eg, thing.’
‘your Honour, the authorities on
causation are all one way, in that
they all state...’
Beginners Mooting Handbook
 Mooting Phrase
The authority for that
proposition is/I rely upon
That case is distinguishable
Might I move on in the interests When you are running out of time ‘I’m running out of time...’
of time/I note the time, your
Honour, may I move to my next
submission?
I see my time has expired, may
I have a short extension to
conclude this
submission/answer your
Honour’s question
Those are our submissions
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How to Use It Incorrect Form
Where you are citing a case to ‘I cite’, ‘Can I draw your
support a submission, eg, ‘all Honour’s attention to’, ‘it’s in
doctors owe a duty of care to Rogers v Whitaker...’
their patients to warn of material
risks, the authority for that
proposition being Rogers v
Whitaker’ or ‘I rely on Rogers v
Whitaker...’
Where you agree that a case is ‘That case is different...’
valid law but say that it does not
apply, ‘Chappel v Hart is
distinguishable, your Honour,
because...’
and need to move on.
Where the time has run out but
you are half-way through saying
something. Note: only ask for
enough time to complete the
thought you are on, and do not
ask for an extension of time as a
matter of course.
To conclude your submissions. ‘I rest my case’, ‘thank you, your
Honour’.
Beginners Mooting Handbook