148

CHAPTER 6:
STRUCTURE OF
ORAL
SUBMISSIONS

A. Introduction

During a “moot session” or a “moot court

proceeding” mooters will be presenting their oral
submissions, arguing against an opposing team
that has been assigned to them. This is the time
whereby all their research and preparation will
be used in action. As such, each mooter needs to
know the proper structure on how to deal with
their submissions according to their role.

B. Opening Speech – The Appellant

How do you begin? Smile and greet the judges.

Begin by introducing yourself and your
co-counsel. Aside from that, it is also
considered courteous to the Senior Appellant, as
the first speaker to also introduce the counsel for
the Respondents. Some possible examples
would be,
149

1. “Yang Arif, may it please the court / if it

pleases the Court, I am Haslina Hassan,
appearing on behalf of the Appellant.
Appearing with me is Mr. Zaid
Baharuddin. With us are learned counsel
for the Respondents, Miss Rofitah Fuad
and Miss Michelle Osman.”

2. “With your leave Yang Amat Arif, Yang

Arif, Yang Arif, I, Bedrudin Norikic, am
representing the appellant and assisting
me is my junior counsel Aishah Mohamad.
Representing the Respondents are learned
counsels Amir Hisyam and Faizah Mat
Nor.”

3. “Begging the Court’s indulgence Yang Arif,

I am Melati Abdul Hamid, appearing on
behalf of the Appellant and together with
me is my learned colleague, Ms. Siti Aliza
Alias and learned counsels for the
Respondents are Ms. Sarah Abd Rahman
and Mr. Alfian Kuchit.”

Once you are done with the introductions

briefly introduce the case in two or three
sentences. At this point, there is no need for
you to delve into the full facts of the case. It
would be sufficient for you to begin by attracting
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the judge’s attention to the crux of the problem.

For example,

“Yang Arif, today’s appeal has come about

due to the unusual and unfortunate
circumstances befalling the Appellant,
Mrs. Chan Ah Tick in pursuance of a
contract of surrogacy. As a result of this
illegal agreement, the Appellant has had
her child forcefully taken from her and all
her rights as a mother of the child denied
by the Respondent. The Appellant wishes
to appeal against the decision of the High
Court, which decided in favour of the
Respondent and in doing so has failed to
address the following points of law …”

You then continue to state, in general terms

the issues that arise from this case and
how you and your co-counsel will be
dealing with them, as well as how much
time each of you will take in presenting your
arguments. If there is allocation of time for
rebuttals, request for the time to be allocated for
you. This is necessary in mooting due to the time
constraints and the need to be fair to all the
students involved. An example could be:
151

“Yang Arif, the present case brings about

four main issues, which are…I will be
dealing with the first and second issues
while my co-counsel will be dealing with
the third and fourth issues. Each of us
proposes to take fifteen minutes of the
Court’s time and we seek to reserve three
minutes for rebuttals.”

Next, return to your issues and provide the judge

with a road map to your submissions.
Inform him in more detail what your issues are
and how you plan to deal with them. You would
then say,

“Yang Arif, I will now deal with the first

two issues which are…. In doing so, I have
divided my submissions into two parts.
The first part will deal with…..and the
second part will address the issue of…”

Before you begin your submission proper, always

remember to also highlight to the court the
relief that you are seeking for your clients.

In brief, as Appellants you must:

152

1. Introduce yourself and your co-counsel and

it would be polite to also introduce the
counsels for the Respondents;

2. Briefly introduce the case;

3. Briefly state how many issues are there and

who will be dealing with what;

4. Return to your main points, and provide a

brief outline of your submissions;

5. Also highlight the relief that you are

seeking for.

Lastly, before you end your opening speech and

move into your submissions, you need to
indicate this or ask permission from the court, by
saying,

“Unless there are any preliminary (or other

questions, depending on whether any
questions were asked so far) from the
Bench, may I begin my submissions
proper?”
153

C. Opening Speech - The

Respondent

The Respondent will have similar tasks, the only

difference being in the way you introduce the
case to the judge. For example;

“Yang Arif, the present case is a clear case

of a breach of contract, whereby the
Appellant had received the consideration
but failed to carry out her obligations as
agreed and consented upon by both
parties.”

The respondents are also allotted the same time

for oral submissions. They may also reserve time
for surrebuttals if the appellants seek for that
right.

D. Presenting Your Arguments –

The Appellant

After the presentation of your opening speech,

the Appellants are given the opportunity to
provide the judge with the material facts
of the case. Do so wisely. How did the case
reach the appeal judge? Why is the decision of
the judge below disputed? When presenting
154

facts, highlight incidences that actually happened

and how it was decided. Do not bring in the law
yet. Show to the court how your client was
adversely affected by the decision.

Once this has been achieved – move to going to

the legal issues and return to the
structure that you had outlined earlier to
the judge.

Present your arguments according to the

structure that you provided to the judge. For
example,

“Yang Arif, I will now begin my

submissions proper by addressing first the
issue of… My first submission on this issue
is that ….”

Once you have dealt with the first issue, move

on to the next issue by providing a sign
post –

“Yang Arif, having dealt with the first

issue, I would like now to move on to the
second issue. My first submission in
regard to this issue is …”
155

After highlighting the legal issue, bring in your

submission on that particular issue. Your
submission is actually the legal position
that you would like the court to take. In
other words, it is the answer that you propose
in answering the issue. For each submission, do
the following:

1. Highlight the legal problem faced by your

client;

2. State the legal principle and rules and the

authorities that you have relied on;

3. Explain how the facts of your client’s case

apply to those rules and principles;

4. Conclude (very briefly) stating the relief

requested.

When you cite your authorities, you must refer

the judges to the actual report contained in your
Bundle of Authorities. In referring to your
Bundle of Authorities, say the following:

“May I refer YA to the case of (case name

and citation) tagged as (C1, C2, etc) in the
Appellant’s/Respondent’s Bundle of
Authorities at p.____ at the highlighted
156

portion. May I quote in verbatim Yang

Arif?”

Make sure you wait for the judges to get to

the right page before quoting. After quoting in
verbatim, explain the authority and how it
applies to your case.

Once the bailiff shows that you are left with only
one minute, you MUST prepare to end your
submissions, even if you have not dealt with all
the issues. The moment the time is up, STOP,
and request for a minute to finish your sentence.
It is considered rude to continue until you are
stopped by the judge.

If extra time is granted, do not be too relieved

and continue with your submissions. Instead,
quickly finish your sentence and conclude your
arguments within the extra time given. If the
judge grant extra time and ask you to summarize
your remaining points, do so! Do not continue
with your submission as how you’ve prepared it
in your original text. As such, you can also
prepare a summarized version of each of
your submissions should the need arises
where you need to summarize.
157

E. Role Of The Respondent

The role of a Respondent is as the name suggests,

to respond to the arguments brought forward
by the Appellant. In real appeal cases, the Notice
of Appeal will be served on the Respondent,
hence giving the Respondent time and
opportunity to be informed of the grounds for
appeal and sufficiently prepare for it.

For the purpose of a moot however, usually, the

Respondent will need to anticipate the
possible legal stand that will be taken by
the Appellant. In formulating your own
arguments, you may use the judgment that is
being appealed against. Your duty is to state the
reasons why that judgment should not be
disturbed.

However, you are also required to anticipate and

respond to the argument brought up by the
Appellant. This you may do by bringing in the
arguments brought up by them in the course of
your submissions.

Responding would entail you to take note of their

authorities (from the Outline of Submissions that
are usually exchanged), and think of how to deal
with them. If the authorities brought by them are
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binding, then your main role is to find an

authority that has overruled that position. Alas,
this will not be an easy task! The next best thing
then is to distinguish the present case from the
authority that they had brought forward.

Another way is to argue that there are certain

parts of the conditions that are not fulfilled or
that the facts of the present case show that the
operation of the law is subject to certain special
conditions and that the present case does not
fulfill those conditions.

Yet another way of arguing is by relying on

policy issues and the court’s general
sense of justice. Reliance on these areas of law
would require you to bring in specific cases to
show how the court in certain circumstances has
relied on their strong sense of doing justice.

F. Concluding Effectively

Your closing must be as strong as your opening.

It will be the last thing the judge will remember,
so you need to leave the judges with a good last
impression. Your concluding remarks is NOT
a repetition of your outline of submissions. It is a
reaffirmation of all that you have
159

presented - which means you need to bring

home the crux of your case and why the
judge should decide in your favour.

This can be done by highlighting the facts and tie

it down with the authorities you had cited.
Mention too the relief that you are seeking from
the court and end your speech politely.

You can end your speech by saying either of

the following:

“Unless I’m of any further assistance to the

Court, that concludes my submissions.”; or

“If I’m of no further assistance to the

Court, that concludes my submissions.”

G. Rebuttals And Surebuttals

Once the Respondents end their submissions,

the Court will allow the Appellants to rebut the
Respondents submissions. However, the right to
rebuttals is not an automatic right. You must
reserve the right and claim it at the very
beginning of your submission. After having gone
through your opening statements, add “Yang
160

Arif, the Appellants wish to reserve 3 minutes for

rebuttals”.

When doing the rebuttals, mention how many

points you are going to make. Make sure you
rebut crucial points that could adversely
affect your client’s position. List them in order of
importance and deal with them one by one.
Attack their position by bringing in authorities to
support your contention. If that is not possible,
distinguish your client’s position from the
position brought up by the respondents.

Once you have completed your list, thank the

Court and end your rebuttals and sit down.

But remember! Rebuttals are not a must. If you

feel that the Respondent’s submissions could not
adversely affect your earlier submissions,
forgoing your right to rebut could send a very
loud message to the Bench.

Meanwhile, the Respondents may respond

only to the issues brought up by the
Appellants in their rebuttals through the
surebuttals. The principles of surebuttals are
similar to that of the rebuttals.
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CHAPTER 7:
SKILLS FOR
ORAL
PRESENTATION

A. Approaching the Podium

When the judge enters the courtroom, all

counsels at the bar table must stand up. Wait till
the judge bows and sits down before you bow
and take your seat. Do not jump up and go
straight to the podium as soon as the judge sits
down. Wait for your case to be called and ensure
that the judge has settled all his papers and is
ready to receive you before approaching the
podium or rostrum. Usually, he will look at the
Appellant once he is ready and invite you as the
first speaker to come forward. At this point of
time you too must be ready to approach the
podium. Immediately approach the podium and
put your file or papers in order for easy
reference.

B. Creating that First Impression

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Remember, first impression counts! Judges are

human beings, and just like how you would form
an impression in your mind the first time you
meet someone, they will also form an impression
of a mooter’s level of competency within the first
minute of his presentation. Sad, but true! Fret
not, remember these two (2) aspects and you will
be able to create a favourable first impression:

1. Your appearance

Make sure you are appropriately dressed.

Wearing the proper attire will give you the
confidence that you need, and more
importantly you do not want to
unnecessarily take the risk of the bench
being prejudiced against you if you are
inappropriately dressed. You can know
better about proper court attire from
chapter 8.

2. How you carry yourself in that first

one minute

In this first minute, remember to introduce

yourself and your co-counsel. Do not
mumble your name, say it clearly and say it
with pride! State the issues you wish the
court to address and your submissions on
163

those issues, all succinctly. More

importantly, avoid going into a
monotonous mode from the very
beginning. You must speak with
confidence and enthusiasm, and look
like you’ve been preparing for this moment
for so long and now you’re finally here to
shine!

C. Advocacy Skills

Advocacy skills in a moot are all about how well

your oral presentation is. REMEMBER, mooting
is about the art of persuasion. Your task is to
persuade the court of the merits of your case.
Above all, the role of a mooter is to assist the
court, NOT simply to present your case. By
remembering your aim i.e. to persuade
the judges, it should guide you better on how
to approach the moot session at all juncture
throughout your presentation.

It goes without saying that the MOST important

aspect of a mooter is preparation. Why?
Simply because hard work put into preparing
your case for the moot is needed in order to
make up for your lack of experience! Even senior
lawyers who have been going to court for years
need to thoroughly prepare their case, so what
164

makes you think a rookie like you can go through

and survive a moot experience without the need
to prepare well? If you assume you can do well in
a moot without the need of thorough preparation
for whatever reasons, be it your past experience
in public speaking activities or your high
language proficiency comparative to your other
friends, be rest assured that you are committing
suicide! This is because a moot is as much about
substance as it is about style. And both aspects
come with preparation!

On the other hand, if you have prepared well in

terms of the substance of the moot problem,
learning the skills of oral presentation can
greatly improve your chance of doing well at the
moot. Advocacy is after all, an art! And like
all forms of art, some people are born with the

To be an EFFECTIVE mooter you

need...

 A. STYLE
 B. SUBSTANCE


talent, but other people can equally master the
art through learning its nuances and practicing
them diligently!
165

1. Style

a) Eye contact and pleasant demeanour

So, when you are standing there for the first

time, it is good to look at the judges and greet
them with a smile. Throughout your presentation
you should maintain eye contact with all the
judges. This obviously means you do not read
from your text! You can of course glance
occasionally at your text to ensure you are on the
right track, but DON’T READ.

Reading from your text shows lack of confidence,

poor preparation, and not to mention when you
read your intonation will either be a reading
intonation or some other unnatural sounding
intonation that would bore the judges and put
them to sleep! Do not memorize either,
memorizing can be very dangerous since
questions from judges will interrupt your flow of
memorisation and you can go blank! With
thorough preparation you would be able to
internalise your submissions and able to present
them with ease while maintaining eye contact
with all judges (including the silent judge!).
166

Eye contact is important in any form of

communication, as it ensures the other party is
listening to you, it demonstrates honesty and
believability, as well as being a reflection of a
confident speaker, all of which will help to
persuade the judges better. And remember,
persuasion is key!

A pleasant demeanour will also go a long way

towards persuading the judge. Why? Because we
are seldom persuaded, or are less inclined to be
persuaded, by a person whom we dislike! As
such, you need to make yourself LIKEABLE.
This does not mean ingratiating to the judges.
What it means is that you need to build rapport
with the judges by speaking pleasantly,
appearing to be sincerely wanting to assist the
court, and do not be afraid to SMILE
occasionally at appropriate junctures. No matter
how strongly you feel about your case, do not
take a defensive stance with the bench and never
appear argumentative. Remember, there is a
world of difference between a confident speaker
and a cocky one! The latter will not make
yourself likeable and pleasant at all.

b) Voice projection and good posture

A good speaking style would involve speaking in

a clear voice. Do not shout, but don’t mumble
167

either. You need to speak up, but speak

naturally. Do not employ some weird-
sounding intonation! You don’t want to distract
the judges with an overly dramatic intonation.
You also need to speak with deliberation and
force, as these are qualities of good advocacy.

Also, mind your posture! Standing up straight

and looking at the judges creates an impression
that you are confident and well prepared with
your submissions. A good posture also helps you
speak clearly as your voice will be projected
outwards. If you slouch and keep your head
down, your voice will not be heard clearly and
this creates a bad impression on your part. So
make sure you do not look down at your papers
when speaking, this would show that you are
unprepared and would bring down the volume of
your voice. Something as simple as a good
posture can make you have a commanding
presence!

c) Speaking at appropriate pace

Next, make sure that you speak at an appropriate

pace (not too fast and not too slow). When you
speak too quickly, you tend to lose the judge and
it also gives an impression that you are nervous.
There is no use having the best arguments and
authorities if the judge cannot understand you
168

because you are speaking too fast! That would be

a waste of everybody’s time. So take your time to
speak deliberately and firmly. Nevertheless,
make sure you do not speak too slowly instead.
You could possibly lull the judges to sleep!
Moderation is key here.

d) Articulate and fluent

You must also be articulate in the use of the

language, be it in English or Bahasa. This does
not mean that you must speak with an American
or British accent! Just make sure that there are
no grammatical errors and use the appropriate
words at appropriate times.

Many students try to make sure their language is

correct by reading from a prepared text. This
would be a HUGE mistake. Do not read your
submissions. This would admittedly be easier for
students who are comfortable with the use of the
language. In case you have no choice but to
present in a language which you are not
comfortable with, stick to the following tips:

i. Use short sentences. Using short sentences

minimizes mistakes and makes the things
you want to say easier to remember.
169

ii. Speak at a moderate pace. This gives you

time to consider the appropriate words to
use.

iii. Plan what you want to say and the way you
want to say it.

iv. Practice, practice, practice! Practice

presenting your submissions with your
instructor or coach before the actual
presentation.

Practicing also ensures that when the actual

moot arrives, you will be fluent in your
submission. Fluency ensures it will be easier for
the judges to follow and understand your
submission, and only if this happens can they be
persuaded by those arguments! Being fluent also
means you need to speak with a clear
diction and enunciation, and speaking
clearly and confidently.

When you are not tied to a fixed text, you will be

able to avoid the biggest danger of being thrown
off your track if the judge asks you a question.
The key is to know your arguments well and
understand how you are going to use your
authorities.
170

e) Voice modulation and intonation

Another advantage of not reading your text is

you will be free to use the power of your voice.
Vary your intonation. For example, when you
need to emphasize certain points you can either
increase or decrease your pace or you can
increase your emphasis on a certain word by
pausing or modulating your voice according to
what you consider would be most effective in
catching the attention of the judges. DO NOT
BE MONOTONOUS! Remember, this is not a
lecture, you are not lecturing the judges, you are
presenting to them. You need to communicate
with them, have a conversation with them.
And no one converse in a monotone! Put
expression into your voice, vary your
intonation, vary the tempo and the volume of
your voice where appropriate. Again, being a
monotonous speaker is a sure-fire way to make
the judges lose interest in your submission or
even worse, put them to slumber!

f) Mannerism

Aside from the way you speak, your mannerisms

and body language are also important. Please
ensure that you avoid any distracting gestures.
171

Control your hand movement. A person who

speaks with his hands flailing would perhaps
make a better political speaker than a good
lawyer. A good practice would be to hold on to
the podium. Only use occasional gestures to
emphasize particularly important points.

Remember!
You need to also control and minimise any
nervous gestures and oral ticks. What does
this means? Some speakers when they are
nervous tend to do certain thing subconsciously,
such as touching their nose, pushing back their
spectacles, tugging at their scarves or their ties, HOW TO BE A
CONFIDENT
etc, and worse still they tend to do this
SPEAKER?
repeatedly. These are very distracting to the
bench, not to mention it is a dead giveaway as to Confidence is
reflected through:
your unease and flailing nerves, which are not  Eye contact with
very good impressions. Similarly with oral ticks, judges
 Body language
some speakers will go “umm” and “ahh”
 Voice projection
repeatedly when they are nervous. You need to
Be yourself!
first be aware of whether you have these nervous Prepare well!
gestures or oral ticks (practicing and getting Believe in yourself!
Believe in your case!
feedbacks from team mates, or recording
Be calm!
yourself, can help identify this problem), then Consider yourself as
next you need a conscious effort to overcome an assistant to the
court!
them. Saying a little prayer
could help!

g) Confidence
172

Confidence is built primarily with the knowledge

that you have done a thorough research and you
are well prepared. Proper preparation will allow
you to believe in your own case and also make
you more receptive to questions from the bench.

2. Substance

a) Know your case INSIDE OUT

Demonstrate a thorough command and

understanding of all aspects of the case which
includes the law and underlying principle, the
facts and the policy behind the law (policy
consideration).

b) Demonstrate ability to deal

effectively with the court’s concerns

AGAIN, THESE COME WITH

THOROUGH PREPARATION!

Address the judges’ concerns, understand and

answer the questions well and be very sharp.
173

LIGHTBULB!

CHAPTER 8:
COURT
It’s well-settled that
ETIQUETE judges have
the power to
summarily
convict and punish
anyone who displays
Introduction
contempt of court in
All members of the legal professional have a duty the judge’s presence.
to contribute positively towards the Some have argued
that the law
administration of justice, in accordance with the
governing contempt
law, with competence and integrity. Whilst this is so vague that it
duty affects professional conduct within the can be used to punish
virtually anything
solicitor-client relationship, it also affects the
which isn’t explicitly
lawyer’s relationship with the court. Each against the law, but
member of the legal profession is entrusted to happens to anger the
judge. However,
support the independent and impartial
that’s not entirely
administration of justice. And part of this duty is the case. While
for legal practitioners to provide competent contempt of court is
different from other
assistance to the courts and to promote public
criminal convictions
confidence in the court system. In carrying out in that it rarely
their duties, legal practitioners are required and requires a trial (the
judge personally
expected to deal with other members of the legal
witnessed the entire
profession with courtesy and integrity. act of contempt,
allowing him to make
the necessary
determinations of
fact), like any other
conviction, it can be
appealed.
174

A courtroom is a solemn place, representing the

judicial branch of the government, and a judge
demands respect as a representative of the
government, whether it is a superior or
subordinate court. Specific rules apply to those NEWS:
who are bringing cases to court or who have JUDGE GIVES
LAWYER DRESSING-
cases brought against them. DOWN OVER
ATTIRE!

The key word in this discussion is “respect.” You

must have respect for the judge as
representative of the court, and respect for the
courtroom process.
1.0 What is Court Etiquette?
When speaking of court etiquette, it covers a
range of rules that requires you to dress, appear,
speak and act in a certain manner when you are
in Court. The term etiquette may suggest that it
is certain behaviours that are expected of a
person in certain circumstances by way of a
conventional norm, however, in the context of
court etiquette, lawyers in Malaysia are expected
to follow the Legal Profession Act, 1997 and the
Legal Profession (Practice & Etiquette) Rules,
1978. Aside from that the Malaysian Bar Council
Rulings also serve as a guide for lawyers.
Basically, when speaking of court etiquette, it is
meant to ensure that you appear and act in a
a
PUTRAJAYA: No robe, no
talk. This, in a nutshell, was
the message that Court of
Appeal judge Datuk Gopal
Sri Ram had for a young
lawyer yesterday who
appeared before a panel of
judges without the required
apparel. He initially offered
the lawyer a hint by saying "I
can't hear you.' When the
lawyer, who was also not
wearing a bib around her
neck, did not take the bait
but continued addressing
the court, Sri Ram told her
that she was not suitably
attired. The judge then
asked her whether she was
told that it was fundamental
for a lawyer to be fully
attired before appearing in
court. To this, the lawyer
replied that she did not
know about the
requirement as she had not
been told about it. On
hearing this, Sri Ram took
the Bar Council to task for
"not doing anything' to
address falling standards
and respect for the court. He
also criticised the legal
profession for the
deterioration in standards.
Sri Ram said the legal firm
175

professional manner especially when you appear in court.

In view of the fact that you will mock a court room scenario, it would only
make sense to follow the court etiquette as provided by these sources.

1.1. Why is Court Ettiquette Important?

It is important for counsels to become acquainted with court etiquette
before their appearance in court. First impressions are as important for
the courtroom as they are for any other situation. While justice may be
blind, there are still standards to abide by when you are in the
courtroom. These standards include appearance, behavior, language and
other general rules.
176

Do You
1.2. Dresscode & Court Attire Agree?
You will be required to dress appropriately when
presenting your oral submissions. But this does
not mean that you have to be in the latest
fashion! It is enough if you ensure that you look
your best. Best simply means that you are neat
and tidy! Best also means you are dressed in a “Lawyers in
professional and formal attire that aims to show particular have to
adhere to
respect to the importance of the building and the conservative rules
what the building represents i.e. the justice for clothes,
primarily because
institution. Short skirts, open shirts and other they are very rarely
high boutique fashion isn’t necessary or even speaking for
themselves. If a
welcome in most courtrooms. In other words, judge or jury hates
you’re not here to make a fashion statement but you, you want it to
be because they
to look like a respectable member of society. heard and
Respect for yourself, the court and other people considered your
client’s argument…
is the key concept to understand when talking not because your
about basic courtroom etiquette. clothing conveyed a
lack of respect, or
offended them in
some other
You can be certain that if you look like a manner.”
rebel, you will be so treated. In one case in San
Francisco’s appellate court, a 21 year old, on his
way to the beach, walked into the clerks office
wearing only bathing trunks and sandals with
long uncut hair. His response to criticism was,
“Hey! I have a right to dress any way I want!”
Yes, indeed. But, he didn't get what he wanted ~ Kat Griffin,
founder
from them. When appearing in court, look and of Corporette.com, a
site that advises
professional women
on how to dress
177

talk like a lawyer, and speak in formal or court

English (not slang)! Appearance plays a big role
in winning your case. What's at stake is your
Take Five!
credibility. Are you believable? Not if you sound,
act, and dress like a ruffian.

DRESS CODE Billy Thomas : Ally, do

you really want to be
The following table provides a brief guide as to known as the mini-skirt
attorney?
what is allowed in court.
Ally McBeal: I don’t
LADIES GENTLEMEN want to be known as the
attorney who let the
Blouse – White Shirt – (long/short
judge tell her how to
(long/short sleeve) sleeves) with white wing
dress.
with white wing collar collar and bands.
and bands. The above quote was
Skirt – must be below Slacks – Black/dark from an episode of Ally
the knees. Black/dark blue/dark grey/ pin McBeal during the
blue/dark grey/ pin stripes. second season of the
show. One of Ally’s
stripes.
most memorable
Women may also wear
characteristics was the
pants but they must be fact that she wore
loose and not tight extremely short skirts.
fitting. Always with a blazer,
Traditional dress – but still, her hem lines
Subtle floral patterned were pushing it. In this
episode one judge could
prints in the above
not accept this much
colours.
leg in his courtroom
Jacket – Black. No Jacket – Black. No brass and scolded her.
brass or gold buttons. or gold buttons.
Nylons – Skin-tones Socks – Black/navy
only. blue/dark blue.
178

Shoes – Black/dark Shoes – Black/dark In Certain Jurisdiction,

blue/ dark grey. Court blue/dark grey. Lawyers Are Expected
To Wear Wigs. Why?
shoes no sandals or
half covered shoes
Robe – Black Robe – Black
Head-dress – N.A. Generally, men are
Black/dark blue/dark allowed to wear their
Here Are Some of The
grey/white. Subtle songkoks or turbans so Reasons.
floral patterned prints long as they are clean and Bringing the Court Self
One cited reason is that
also permitted presentable. the courtroom is not a
place for personalities. It
is a place for the law. By
However, if you are appearing before the bench wearing a wig, the
solicitor is indicating that
in the High Court, Court of Appeal or Federal
they have left their
Court, you have to wear the above attire together personal selves outside of
the courtroom, and their
with several other court apparel and accessories lawyer self is the one that
as shown below. has arrived at the trial.
Preventing Biases
Legal proceedings are
meant to be limited to the
law. There is a belief that
Court Apparel and Accesories the slick hair of a good
looking attorney could
a) Bands/Tabs
sway outcome of the trial.
Bands are a form of By putting on the wigs, the
lawyer is able to ensure
formal neckwear,
that their looks do not
worn by lawyers, and affect proceedings.
Impersonalizing
with some other Similarly, the courts were
not meant to be
forms of courtroom
personalized. Wigs reduce
apparel and the reason for the solicitor
to pay much attention to
accessories. They their appearance, as though
what they look like is
take the form of two oblong pieces of cloth, important at a trial.
usually though not invariably white, which are
tied to the neck. They are called bands (instead
179

of band) since they require two similar parts and

did not come as one piece of cloth.xiv
Do You Know?

b) Winged
Collar
Shirt/Detachable
Wing Collar
The bands (as shown
in the picture above),
must be worn with a
winged collar shirt. A winged collar shirt is type Robe or Court dress as we
know it hails back to the late
of shirt that has a heavily starched short collar 17th century. As Edward I
with the tips standing up and pointing broke the hold of the church
on the English legal
horizontally. The collar tips resemble wings, profession in the 13th
century, a new body of lay
hence the name lawyers appeared. As
“winged collar”. The representatives of the
sovereign they were
winged collar dress expected to embody the
dignity of the law and they
shirt is a very dressy adopted a style of dress
option for the most similar to that of the nobles
of the time. Legal garb
formal of occasions. followed the whims of
fashion. By the end of the
The winged collar is 1600s, the gown was being
comparable to the Gladstone collar and often the abandoned by the trendy
crowds, but court officials,
Gladstone collar (coined after William Gladstone academics and clerics
retained it as a symbol of
the historical prime minister of England) is given their professions. As the robe
credit as the predecessor to the winged collar. became an emblem of legal
expertise, a combination of
Sometimes, a lawyer may wear a normal white regulation and convention
crystallized the main
shirt with a detachable collar instead of a winged characteristics of legal dress.
collar shirt. A detachable collar is (For more information on the evolution
of legal dress see The Hon.John deP.
a shirt collar separate from the shirt, fastened to Wright's excellent article "Gowns,"
The Law Society of Upper Canada
Gazette, vol. 15, no.3,
September/December 1992, 219-232)
180

it by studs. The collar is usually made of a

LIGHTBULB!
different fabric from the shirt, in which case it is
almost always white, and, being unattached to
the shirt, can be specially starched to a hard
cardboard-like consistency.

Robe or Court dress

Robe is worn at all
in Malaysia is based
open court on English court
proceedings, in all dress, with some
modifications. Since
superior courts in
the 1980s, judges no
Malaysia. Robe may be longer wear wigs,
dispensed with at the wing collars and
bands but instead
option of the judge, e.g.
wear a waterfall
in very hot weather, cravat with court
and invariably where it may intimidate children. coat and black silk
gown. Robes for
Robe is not worn at hearings in chambers and in
Syariah court lawyers
the subordinate courts such as sessions courts are generally black
and magistrate' courts with gold lace, and
include a
c) Robe/Court Dress Malay songkok.

d) Shoes (female)
A court shoe (British
English), or pump
(American
English), is
a shoe with a low-
cut front and
usually without a fastening. However, some
have an ankle strap. Pumps for women are
181

usually heeled. The shape has varied through

time. In the UK, outside the fashion trade, the Do You Know ?
term “pumps” would normally imply flat or
low-heel dancing or ballerina pumps, or even
rubber-soled canvas plimsolls. Pumps can be
made from any material, but traditional patent
leather is popular. Pumps are mostly worn with
a suit or a uniform, but are also worn with
formal and informal dresses, skirts, trousers,
and jeans.
Although lawyers in
U.S (known as
‘attorneys’) are not
required to wear any
e) Shoes (Male) kinds of black and
white, uniformed
The construction dresscode like
of male pumps is lawyers in
Malaysia, the judges
simple, using a
in U.S are quite
wholecut leather strict in demanding
top lined with lawyers to appear in
court in the right
cloth. The sole is attire. One of the
either glued onto the bottom, common on most renounced
cheaper styles, or sewn, as on more costly
judges in the
U.S, Lenore
bespoke styles still made traditionally, using a Nesbitt, who was
shallow slit to lift a flap of leather around the the first female
judge appointed to
edge to recess and hide the stitching. The sole
the U.S. Southern
is, as on ordinary shoes, several layers of District of Florida,
leather put together. used to send women
out of her
courtroom for
wearing open-toed
shoes.

Read more
at: http://www.thegrindst
one.com
182

Other Accesories: LIGHTBULB!

a) Vest b) Waist Coat

Counsels in Malaysia
dress as English
junior barristers do,
but they do not wear
wigs.
Prior to the 1980s,
counsels serving in
Bands, Robe and Waist Coat Together: the government legal
service wore wigs.
However, counsels in
private practice have
never done so.
~Wikipedia.com

The bands and the robe is necessary only if you

are presenting in a court of appeal or federal
court setting.
183
LIGHTBULB!

The Full Set:

(Male & Female)

Undeniably, the role of

the British for the
legal development in
their former colonies
is much acclaimed. But
the wind of change is
blowing all across the
globe including the
United Kingdom
relating to the dress
code. In November 21,
2011 the President of
the UK Supreme Court
(UKSC) in a press
notice revised the
dress code at the
UKSC. According to
the new guidance
lawyers appearing at
the UK's highest court
Examples of Malaysian set up in October,
2009 will no longer
have to wear the
lawyers in full court
traditional wigs and
attire gowns. The purpose of
the new costume in
line with the court’s
goal is to make the
court as accessible as
possible extending the
court’s commitment to
providing an
appropriate
environment for
considered discussion
of legal issues.
(Read further at Press
Notice 12/2011,
http://www.supremeco
urt.gov.uk/docs/pr_111
2.pdf
184

Nevertheless, court etiquette is not just about

your appearance. It also covers the way in which
you deal with other counsels as well as the judge.
Therefore, you are expected to be polite,
respectful and deferential to the court at all
times. You are also expected to treat counsels
from the other side with courtesy and respect at
all times.
Legal Practice
Input!
1.3. Seating Arrangements
When entering the Court, make sure you know
where to sit. Although the judges will not usually
comment if you take the wrong seats, but it
would be embarrassing on your part if you did There has been a
not know the correct seating arrangements. It recent change in the
number of judges
clearly shows your lack of etiquette. presiding in any
proceeding in the
Court of Appeal
The Appellants are to sit on the judge’s left and today. In the past,
the Respondents to his right. proceedings are
usually by three
judges. But at present,
the number of judges
presiding has been
increased to five. But
for in mooting, the
numbers are still
maintained at three
judges per
proceeding.
185
Legal Practice
Input!

In real courts, judges

are not too fussy about
the appellant and
respondent sitting at
the right side of the bar
table. Right or left is
not really an issue as
long as the documents
are in order and all
counsels are present,
ready to proceed. This
is especially so in the
Court of Appeal and
Federal Court since
there is more than one
row of bar tables in the
court for all lawyers to
sit waiting for their turn

1.4. Language In Court

When we speak in the English Language, we can Tournament
speak in three different ways: (1) Street English Tips!
(slang), (2) Formal English (taught in schools),
In Syariah Mooting
and (3) King's English (not taught in the schools, Competitions
but used in the court rooms). however, the main
language is the Malay
language following
the actual practice of
the Syariah courts in
Malaysia
186
Legal Practice
Although they involve similar sounds, they are Input!
quite distinctive in how they convey ideas. For
example, in Street English if you think something
is really good you can express that thought by
saying, “That's really bad!” Or if something's
In actual legal practice,
really cool, you say, “That's hot!” Foreigners who
the Malay language is
have studied Formal English have a lot of trouble used more often than
the English language
understanding local slang. If you're from the
since the former is the
neighborhood where the slang originates, then national language of
the country. This is by
there is no problem. But if you want to
virtue of Section 8 of
communicate with someone from other places, the National Language
Act 1963. In lower
then you use Formal English. Slang is too volatile
courts, lawyers are
and localized for communication with folks from most of the time
other geographical locations. Formal English, expected to use the
Malay language when
because it is widely taught, is the best way to they appear in court.
communicate with a stranger. English will be
allowed to be used
only if necessary and
If you want to communicate in court or with the lawyers must firstly
obtain permission from
court, then you use King's English, also called the the court before using
Language of the Court, or the Language of the the language.
Nevertheless, the real
Law. It is a separate language and should be practice varies
studied as such. Law schools do not really teach according to the judge
who preside the court.
the idea that it is a separate language. In certain courts,
Consequently, even experienced lawyers can especially the high
courts, lawyers are free
make crucial language errors. to use either English or
the Malay language. In
the Court of Appeal
MODES OF ADDRESS and Federal Court
however, English
There are specific ways of speaking and language is still widely
addressing people when you are in court. The used in comparison to
the Malay language,
since most of the
judges still prefer
former than the latter
to be the main medium
187
Legal Practice
following are some examples of certain words
Input!
and phrases appropriate for use in court.

NORMAL WORD OR SPECIFIC COURT

PHRASES TERMS
President of the Court Yang Amat Arif
of Appeal and The In Magistrate Court,
judges are addressed
Chief Justice of
as ‘Tuan Magistrate’
Malaya, or ‘Puan’ Magistrate’
Judges of the High Yang Arif or sometimes just
Court, the Court of ‘Tuan/Puan”. In the
Sessions Court,
Appeals and the
judges are addressed
Federal Courts as ‘Tuan Hakim’ or
Lawyers acting for the Learned counsel for the ‘Puan Hakim’ or just
other party Appellant or Respondent
‘Tuan/Puan’. In the
Court of Appeal,
– as the case may be apart from using
Asking permission Yang Amat Arif or
1. I beg the court’s
Yang Arif, sometimes
indulgence; or senior lawyers would
resort to old English
2. If it pleases the terms such as “My
court Lord” or “My Lady”,
“Your Lordship” or
Thank you I am much obliged “Your Ladyship”
I would like to say that when addressing the
1. I will be judges
submitting…

2. It is the Appellant’s
position that…

I would like to
1. Please allow me to
emphasize
reiterate the
Appellant’s
position
188

I am sorry 1. I stand corrected;

or

2. I beg the Court’s

pardon; or

3. I beg Yang Arif’s

pardon. Tournament
I do not agree with the I humbly beg to differ on
Tips!
court’s position that point When submitting
OK, alright. Indeed, Yang Arif or yes, before the judges, if
you are corrected,
Yang Arif.
admit your mistake.
When you have Don’t argue try to
1. Bringing Yang Arif
already answered the argue with the
back to the issue of
judge’s questions and judge. If the judge
… disagree with you,
you wish to return to
always remain
your submissions. 2. Returning the
courteous and be
Court to my calm when clarifying
submissions… your points. Do not
appear frustrated or
If you are afraid the I beg your pardon Yang annoyed that the
judge is not following Arif, I have failed to judge does not
your arguments explain my position agree with you.
Sometimes, your
clearly. If I may be given a
positive attitude
chance to restate my may score you some
submissions? points on the judges
I would like to answer I would attempt to answer score sheet under
but am not really sure by saying… the category of
decorum, style or
I do not know the I beg your pardon Yang
poise.
answer Arif, however, I am
unable to be of service to
you at this point.
189

Please look at the I would like to bring the

Appellant’s Bundle of court’s attention to the
Authorities Appellant’s Bundle of
Authorities, tagged at ….at
page…. At the highlighted
portion.
The Respondent was The Respondent had
wrong erred in saying that…
Ending your
1. If I am of no further
submissions
assistance to the
court, that concludes
the Appellant’s (or
Respondent’s)
submissions.

2. If it pleases the Court

and if there are no
further questions
from the Bench, this
concludes the
Appellant’s
submissions.

If the judge asks you a Much obliged Yang Arif,

question that relates answering this question
to your next would lead me to my next
submission submission, that is…
190
Do You Know?

1.4. Behaviour In Court

When at court, legal practitioners are expected to

behave in a manner supportive of the solemnity
of the court’s position and of the occasion of the
court proceeding.

Appropriate Attire
The expectation is for all lawyers to strictly Common Pleas
Judge Christine A.
always abide by the dresscode that has been Ward told The Pittsburg
discussed above. On occasion, if situation h Post-Gazette when she
sees an outft she doesn’t
renders it necessary, a judge may give leave for
like, “It doesn’t give me
jackets or robe to be removed. But this will be the best impression of
solely within the discretion of the judge. Without the attorney, because in
my opinion you should
any instruction from the court, lawyers are
have enough sense to
expected to keep their jackets, bands and robes be dressed
on. In general, lawyers are expected to attend appropriately, but it’s

court wearing the equivalent of formal office

attire (in the right colour), with a degree of
modesty.

Before Court
Preparedness for court appearance is of upmost
importance. In addition to the particulars of the
matter for which the legal practitioner is
appearing, knowledge of court procedure is also
required. Unprepared lawyers will delay in the
court in reaching its judgment, disrupt the court
proceeding and jeorpadizes his client’s interest.
Even though a mooting is a just based on a mock
191

case, you are expected to treat the moot problem

Legal Practice
as if it is a real case. Hence you must at all times, Input!
avoid any actions or behaviour that may
negatively affect your client’s case. And this
would include your own personal behaviour and
attire when attending court.
In actual legal
practice, it is an
Arrive early and prepared. You might have to sit unwritten rule, that
and wait, but that is far better than running late. lawyers should
prioritize his/her cases
Arrive late and you might find your case passed in the higher courts
by. (High Court, Court of
Appeal & Federal
Court) instead of those
Upon Reaching the Court in the lower courts
(Magistrate Courts &
It is important that all legal practitioners report Session Courts). It is
to the Court before the commencement of the list unbecoming to be late
to the Court of Appeal
of cases to be called for the day. Hence, it is for example, and
important to arrive in court on time. Whilst it giving reason saying
that you have another
can be difficult, efforts should be made to not matter in the
keep a court waiting whilst occupied in other Magistrate Court as
this would indicate to
courts for other matters. Where this cannot be the judges in the Court
avoided, it is important that the duty solicitor of Appeal that you
have less respect
ensure that court staffs are aware of their towards them in
whereabouts. Where a court has been waiting for comparison to the
Magistrate at the
an appearance, it is important to apologise to the
Magistrate Court
Court for the delay and provide the reason for
the delay at the outset.
192

Relations With Court Staff

It is important that lawyers are courteous to the
Court, court staff and the opposing counsels.
Every staff members at the court has a job to do
and it is important that lawyers are respectful to Remember!
all members of the Court as a matter of
professional courtesy, and because it will make
working life easier when they are inevitably
delayed in making an appearance in court.
While waiting for your
turn to speak, be
Entering The Courtroom careful in the way how
When entering and leaving the courtroom, all you sit in your chair.
When you are in court,
legal practitioners are expected to acknowledge
you are not supposed
the presence of a Judge or Magistrate with a to cross your leg or sit
bow, and then to sit in the body of the courtroom in any appropriate
manner. Respecting
in a manner which minimises disruption. the court also means
sitting properly and
paying attention to
While Waiting To Appear the proceeding
Sometimes waiting for a court appearance can be without distracting
the judge or the
frustrating for junior counsel because counsel
lawyers who are
appear on matters in order of seniority. It is submitting
important to remain patient and courteous when
waiting for a matter to be called on. It is
considered inappropriate for practitioners to talk
loudly inside the courtroom (and outside the
courtroom where they can be heard) while
awaiting their turn, or to move around the
courtroom in a disruptive manner. Mobile
telephones must be turned off and lawyers
193

should not play games or read newspapers while

waiting. The court must be silent and still when
the court is being opened or closed, when a
person is taking an oath or affirmation, when a Tournament
person is being sentenced, a judgment is being
Tips!
In a mooting
delivered, or a prisoner is being arraigned. competition, your
behaviour at the bar
table throughout the
At The Bar Table moot plays a very
important role. You
Court decorum is a high priority. When someone
must remain
is addressing the court, when he has the floor, he attentive,
professional and
is entitled to be fully and fairly heard. You should
assisting. Some
be like a statue. Nodding or shaking your head, mooting
competitions strictly
talking to others, reading, or otherwise prohibit any form of
distracting yourself or others is a grave communication
between the mooter
discourtesy. It is acceptable to take notes when who is sitting at the
another is talking. You can lose a lot of points in table and the one
standing and
the minds of others who understand court presenting. No
customs (you certainly do not want to lose status communication in
any way is allowed
in the mind of the tribunal). Lawyers should between the two
admonish their clients and witnesses to never while the latter is
presenting his
show any outward response to anything said or submissions to the
done in the courtroom. If the opposition is lying judges. In many
instances in the past,
through his teeth, you will get your opportunity mooting teams were
to present your truth later. severely penalized
for breaking this
rules.
A lawyer should always stand when addressing
the Judge or Magistrate, or when the Judge or
Magistrate is addressing him/her. It is important
to always speak from the bar table and not from
194

elsewhere in the body of the court. A lawyer

should never speak when someone else is
speaking (especially the Judge or Magistrate, and
including the opposing counsels). Most
importantly, legal practitioners should display
graciousness, especially in defeat, and respond Tournament
with ‘as Yang Arif pleases’ or ‘may it please Yang Tips!
Usually there will be
Arif’.
three judges
presiding any moot
Addressing The Judge in mooting
competitions. When
Unless you are so invited to do, never directly you are presenting
address the judge or any officer or litigant of the before the judges,
do not ignore any
court. You are not dealing with the individual one them. Say for
members of the court. A court is defined as the example, of all the
three, one judge is
person and the suit of the sovereign. During
silent all through out
court proceedings you are doing business with the moot session
the court as a complete entity. Therefore you while the other two
are very active in
address the court. When you address the court, asking question. You
look directly at the judge, even if your message is must not ignore than
silent judge! Once in
to be acted upon by another member of the a while, look at
court. him/her and smile,
indicating to him/her
that you are also
It is permissible to begin your address to the there to assist
court with the phrase, “May It Please Yang Arif” him/her.

or “Yang Amat Arif”. The judge is the chief officer

of the court. He is the contact point for the court.
By saying “Yang Arif” you are getting the
attention of the court and opening a
communication channel with the court
195

Lawyers must always stand up straight and look

the Judge or Magistrate in the eye when
addressing them. The appearance should be
announced by the legal practitioner by
introducing themselves and the party for whom
they are appearing. For example, ‘If it pleases the
court – my name is [name] and I am the senior
counsel appearing for the appellant, who is [or is
not] present’ in court today. When addressing
the bench at any of the superior courts, “Yang
Arif” or “Yang Amat Arif” is appropriate to
address men and women of the judiciary
(depending on the court that you are in). If it is
in the subordinate courts, “Tuan” or “Puan” is an
appropriate address for male or female members
of the judiciary.

The court, through the judge or other channel, is

always the entity with whom you are doing
business. It is acting in a sovereign-like capacity.
As such, it receives no direction from anyone, but
acts on its own sovereign authority. When
addressing the court, it is gross error to say
something like, "The court's attention is directed
to...." or "The court will note...." It is also gross
error to so address the human who speaks for the
court. If you want the court to take notice of
something, you can properly preface your
196

presentation with, "The court's attention is

invited..." or "May it please the court...". Never NEWS:
Drop the F-Bomb
say to the judge, "Your attention is invited," in Court, Go to Jail
because you are addressing the court through the for 6 Months
judge, you are not addressing the judge himself.
It is ok to say, "Yang Arif, the court's attention is
invited...," because the phrase "Yang Arif" serves
only to open the channel of communication. In one interesting recent
case, a criminal
The whole idea is that the court is in charge of defendant was sentenced
to six months in federal
things. You do not want to do or say anything to prison for uttering a
single profanity in a
challenge the ‘sovereignty’ of the court since it courtroom. Upon being
sentenced for second-
will be resented. If the court does something that degree murder (he got 26
you believe is unfair or wrong, the proper years, which makes this
fight over another six
corrective response would be to object, or to months seem pretty
insignificant), the
make a verbal or written motion. defendant said, quite
loudly, “F*** y’all.”
Classy.
Senior Counsel
It is important for junior counsel to always show The judge summarily
sentenced the defendant
respect to senior counsel. Where there are to 12 months in jail. The
defendant appealed. The
multiple counsels at the bar table appearing for a only concession he got
matter, senior counsel occupy the bar table with was a reduction of the 12
month sentence to 6
the most senior in the centre chair. months, since that’s
generally recognized as
the maximum sentence
that can be handed down
Leaving The Bar Table without a trial. ~Read
The bar table must never be left unoccupied more
http://lawblog.legalmatch
during the hearing of a court list. A legal .com
practitioner must remain at the bar table until
they are given leave of the court to vacate the bar
197

table, or until the next matter on the list is called,

or until the court adjourns.

Court Relations Out of Court

There are many opportunities for contact with
court personnel outside the courtroom
environment. The two most frequent situations
are when you file papers with the clerk and when
you have contact with the opposition. Whatever
the situation, look your best and be your best. If
someone wants to argue or create any sorts of
problem with you, just pass the opportunity by.
Your case is in court, and that's where the fight
will be and all will be according to the rules.
Whenever you meet them, give them a friendly
greeting. Always be courteous to them,
regardless of their behavior.

The important point here is that it is important

how you conduct your battle. Do it with
friendliness and courtesy. Even if your enemy
would not hesitate to stab you in the back, treat
him (guardedly) as your friend. Let him be the
uncultured fool. If the court clerk refuses to file
your papers because of some incorrectly
perceived error, then do it her way as long as you
suffer no significant loss of rights. The reality is
usually the clerks know what they are doing and
if you do things their way you will increase the
198

probability of winning. At all times be friendly,

even trade jokes. You never know when that may
pay off behind the scenes. Remember, the
opposition is human, too. They will make their
mistakes. Of course, you will take advantage of
their mistakes. But always be fair, friendly and
courteous.
199
“Judge: a law
student who marks
CHAPTER 9: his own papers.”
DEALING WITH ~H.L. Mencken
THE BENCH
A. Introduction

This Chapter relates to the attitude that you need

to adopt when dealing with judges and the skills
you need in answering their questions effectively.
Presenting your submissions effectively also
means the ability to handle questions from the
Bench with confidence. The judges are there to
hear the problems of your client but the other
party is also presenting their case before them.
The duty of the judges is to decide, from the
submissions presented to them by both sides,
which one has more legal merit.

The moot judges however have an extra task.

They will also be judging your advocacy skills,
which include your ability to answer questions
on the spot. They will therefore probe, tease and
ask you questions in order to test you on your
knowledge of the law and how confident you are
of your client’s case, and to assess whether you
are an oralist who are able to think on your
feet. You might think the judges are being very
nice when they do not interrupt you to ask any
questions at all, but truth is the judges are NOT
 LIGHTBULB!
200

doing their job if they do not interrupt you with

questions. It could also mean that you are not
Judges come in various
making sense enough for them to be able to ask shapes and sizes. Or rather,
there are many TYPES OF
questions. Either way, this is not the position you JUDGES. Knowing the types
of judges will help you to
gauge better how to deal
want to be in! with each of them
depending on their type.
1. The Experienced Judge –
You can tell from his
Furthermore, as mentioned in chapter 7, questions that this judge
knows a lot, and perhaps
mooting is all about persuading the judges. has also judged many moot
sessions before.
Show him you know your
The only way you can successfully persuade them stuff! But do so in a
respectful, truthful and
to decide in your client’s favour is if you are able humble manner. Project
your personality because
to deal with their particular concerns about your the judge must have seen
many mooters in his time,
case and assuage them of whatever skepticism so you need to be distinct.
You can also show him that
he knows a lot, to make him
they have about your arguments. However, feel good, but do so in a
subtle way.
judges will seldom tell you outright from the 2. The Silent Judge – the one
who rarely asks questions,
outset what their particular concerns are nor will or not at all.
You must make sure you
they tell you directly what they find unconvincing NEVER ignore the silent
judge by only maintaining
eye contact with the other
in your arguments, these are things you need to judges and not with him.
Indeed there may be a need
figure out on your own. Thankfully though, the to look at the silent judge
more often in order to goad
questions they throw at you are good indications him into asking questions.
And once he does finally
and clues as to these! ask a question, make sure
you do your best to answer
it fully!
3. The Aggressive Judge –
He asks a lot of questions,
Remember, assuming that you have prepared and usually in an
aggressive way and may
well and have the most authoritative authorities, sometimes be prone to
sarcastic and scathing
remarks.
the moot winner is determined by which side is Maintain your composure
at all times. Do not get
more able to address the judges’ concerns i.e. angry or show annoyance,
instead be nice to him even
who were best able to answer their questions. if it’s killing you inside!
Counter with reasonable
Therefore, it can be said that this is the most and logical answers, and
match his aggression with
charm, grace and
important part of the moot session. politeness, not so much to
appear like a smartass but
so that he either gets the
hint, or other nicer judges
might throw you a lifeline
instead.
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B. Approaching the Judges

Try not to think of the judges as enemies who are

there to trip you up and make you look stupid
because they are mean and also just for the sake Tournament
of it! Instead, think of them as reasonably
Tips!
intelligent and fair people who are there to test The judges are
your knowledge of the case and your advocacy often asked by the
moot organiser to
skills. In short, think of them as the people who play different
will make all your efforts in preparing the case specific roles in
order to test your
worthwhile. Use the judges’ questions as ability to handle
opportunities to demonstrate how hard you’ve them. So read the
judges and try to
been preparing the case, by answering the
know their type,
questions well. Remember, they are the people since you need to
who decide the moot and assess your tackle different type
of judges
performance, so you can’t succeed without differently. Deal
winning them over to your side and persuading with them
according to the
them of the merits of your case. Do bear this is type of judge they
mind throughout your moot session. have decided to
role-play. It’s
worthwhile to also
There is a need, in the beginning for you to have know that in real
the following assumptions about judges: life they are actually
nice people, usually!

1. Assume that the judge is familiar with the

facts of the case; therefore your role is NOT
to reread or narrate the problem as it was
given to you. Concentrate on highlighting
the key points i.e. points that will help
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the judge view the problem from your

client’s perspective;

2. Assume that each of the judge has his own

particular concerns about the strengths
and weaknesses of your case, which can
either be any part of the facts, the law, or
the policy underlying your arguments;

3. Assume that the judge knows the law but

you are there to assist him in looking at the
most current legal position as well as the
most authoritative authorities which is in
favour of your client. This also means that
even if the law on the surface of it seems to
go against your client’s position, you will be
highlighting how your client’s case could be
distinguished from that position.

C. Dealing with the Judges

Establishing a rapport with the judges from the

beginning is the KEY in ensuring you are able to
deal with the Bench effectively. How do you do
this? Smile and greet the judges. Be courteous.
Always maintain eye-contact. You will not be
able to do this if you read a prepared speech.
Look at the judges and communicate with
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them. You cannot convince them if you do not

communicate with them!

Part of building rapport with the judges also

means that you must appear to be sincerely
assisting or wanting to assist them. Avoid
adopting an attitude of either being elusive, or at Tournament
the other extreme, of being too argumentative
Tips!
with the bench…
In a moot
competition, the
team members will
Your attitude towards the judges must always be usually beforehand
of dignified respect. What this means is that prepare a list of
anticipated
whilst you respect their position as a judges, you
questions, as well as
must also remember that you have done your the best way to
research and you too know your legal arguments answer those
questions. They will
well. Therefore, you do need to be confident of then practice this
the legal position that you have taken. Showing questions and
answers with their
respect to the judges does not mean that you team mates in order
have to grovel in front of them and become a to better prepare
them for the actual
common beggar. You need to be firm as a
questions from the
professional but at the same time respectful of bench. More often
them as judges. than not, the actual
questions will
substantially be
As a professional your duty is to assist the similar to the ones
anticipated, and this
court. In assisting the court you must always would also show
welcome any queries that come from the Bench. that the team has
analysed and
Do not view the questions as interruptions to the
understood the
flow of your submissions. Instead, welcome the whole aspect of
questions as an opportunity to understand their their case
thoroughly to be
able to do so.
204

concerns. This will enable you to better address

those concerns in order to persuade the judges to
accept the merits of your case. Therefore, speak
TO the judges, not AT them!

Present them your case in the most interesting

manner that you could. Answer their questions
as best as you can. Respond to their facial
expressions if the need arises.

Remember, presenting a case means

your ability to explain your position
without being tied to your text. If you
read, you will view questions from the
bench as interruptions, and this is not
the right attitude to adopt when dealing
with the Bench!

It is also wise for a counsel to beforehand mark

strategically areas in your case. What this
means is that you should analyze your case
thoroughly and mark the areas where your case
is relatively weak, as well as the areas where you
have a stronger case. A good moot problem is
designed in such a way that there will be some
issues that are relatively easier to argue for one
side while those issues will be more difficult for
the opposing side to argue. On the flipside, other
205

remaining issues will be more difficult for one

side to argue, while the opposing side will find
those issues easier to argue. Where your case is
strong on the law, you have to pound on this and
emphasize the court’s duty to follow the law.
Where your case is weak on the law, this is where
you can use policy arguments, as well as use the
facts to your best advantage, in order to persuade
the court that it needs to apply the law more
flexibly or that the law as it stands does not apply
to your client’s situations on the facts of the case,
or even, to persuade the court that the law needs
to change because of an overriding policy
considerations. Marking the weak areas of your
case also means you can anticipate better
which part of your case will more
probably invite questions, and be prepared
to answer those questions. To be able to mark
areas of your case in such manner obviously
means a thorough analysis and understanding of
your case is required beforehand.

Lastly, it is worth noting that sometimes in a

moot, some humour or wit is often
appreciated. Moots are not supposed to be too
serious and somber an occasion. But of course
since it is a professional setting, it is all a
question of timing and propriety, when a little bit
206

of humour or wit can lighten up a tense situation

considerably.

D. Dealing with Questions from the

Bench

1. When the judge starts to speak, you have to

stop and pay attention. Do not concentrate
on making sure your fingers are at the last
sentence that you just read! Again, good
speakers DO NOT READ! Listen carefully
to what the judge is asking. Make sure you
are really listening to the question, and not
merely pretending to listen. This means
you must not shut down your brain,
instead try hard to understand what is
being asked of you.

2. Never interrupt the judge when he is

asking a question. Allow the judge to
complete his question before attempting to
answer, do not butt-in in the middle of his
sentence because you assume you already
know what he is asking about and you want
to save time. You might be mistaken, not to
mention doing so is highly disrespectful to
the judge.
207

3. If you do not understand, wait for him to

finish then ask him to repeat or rephrase
the question. You can say “I apologize Yang
Arif, may Yang Arif kindly repeat (or
rephrase) the question”. Of course asking
the judge to repeat his question too many
times may irritate the judge (hence why
you should listen carefully first to he
question), but pretending to understand a
question that you in fact do not is worse,
because you will end up answering
something actually unrelated to the
question. Therefore, you can alternatively
ask the judge if what you understood of the
question is correct (you can say “Is Yang
Arif asking about whether… (state what
you think the question is)?”), and if you got
the question wrong, the judge will
automatically repeat his actual question on
his own accord, without you needing to ask
him to repeat it.

4. Think before you answer. If you need to

take a pause and think of the answer, just
ask politely to be given some time. Do not
panic and blurt out the first thing that
comes to your mind. Before you answer,
pause and think about:
208

a. The immediate answer

b. Why it was asked and where it may
be leading
c. How it will affect your case
d. How to answer it and then bring the
judges back to your argument.

If the question relates to something that you will be

submitting on later, you still have to give a brief
answer, but then follow it up by saying “I will
actually deal with this point in more detail in my
following submissions, unless YA wants me to deal
with this point now.”
IF the judge says yes he wants to listen to that point
now, then you have to do that. Be flexible, don’t be
tied to your prepared structure in your speech,
instead follow the judge’s direction. But remember,
later on you do not have to repeat that same point
again! & after dealing with that point, don’t forget to
get back to your original point (recap, then continue
with what has not been dealt with on that original
point).
IF the judge says no, or gave no clear indication,
then assume you can go back to your original point
and continue with your remaining submission.

5. But do not take too long! Once you have

thought about it, answer the question
directly as possible. If the question requires
a “Yes” or “No” answer, do precisely that.
Answer, yes or no, then explain why. Do
not beat around the bush as a way for you
to internally think of the answer while
209

talking about things that are not directly

related to the question in order to buy you
time to think of the answer. Judges can
usually spot such a devise and will
definitely not appreciate it.

6. When answering a question, respond as

fully and directly as possible. Always deal
with a question immediately, do not put off
answering the question later. Do not say,
“Yang Arif, I will deal with this question
later on in my submissions”. Instead,
answer the question and then bring him
back to your argument.

7. Use authorities to support your answers

whenever possible.

8. Relate your answer to the present case if

necessary.

9. Once you have answered the question,

MOVE ON. Do not wait for him to ask
another question. Instead, bring the judges
back to your submission as smoothly as
possible. After answering question, return
to your submission by saying:
210

“Bringing Yang Arif back to the issue

of …”
“Coming back to my submission …”
“Returning the court to my
submission …”

If a slightly longer time has passed

between your submission and the
question(s) and answer(s) i.e. longer
exchanges with the bench, then you
should repeat a bit what you were
submitting to the court prior to the
question – you can say eg. “ Returning
the court to my submission, I was
submitting on ___(short recap)___, I
shall continue with the point that
__(continue with your remaining
submission)___.”

10. If there is an opportunity, when answering

the question, link it to the point that you
had just made or were going to make and
move automatically back into your
argument. This may be hard to do but it
will become easier with practice.

11. If the Judge asks you a question that

relates to your next submission, you can
say “Yang Arif, answering this question
would lead me to my next submission, that
is …” (but only say this if in fact your very
211

next point really is relating to the question

being asked).

12. Signposting – It would be better if you can

give the bench a more structured answer.
For example, you can say:

“In answering that question, I have

two pints to make, firstly … , and
secondly…”

13. What happens if you really do not know the

answer to the question? Then you have two
choices:

 Request that you be allowed to seek

assistance from your co-counsel. But
this is rarely done for it shows that
you have not prepared your case well
and many advocates are ashamed to
do this. Most of the time in a moot,
judges will not even allow it.

 Admit that you do not know the

answer and apologize. You can say “I
apologive Yang Arif, but I am unable
to assist the court on that”. Although
admitting you do not know the
answer to the question is better than
212

lying to the court and misleading the

court, however it goes without saying
that it will not give the judges a
favourable impression of you, and
this should be done very, very
sparingly and only when it is really
necessary. As far as you can, try as
hard as possible to answer the
question.

E. As a counsel NEVER do the

following:

1. Show disrespect to a judge;

2. Two counsels standing at the same time;

3. Interrupt a judge when he is speaking;

4. Point out a mistake by the judge or tell him

directly or indirectly that he is wrong (even
if he is wrong);

5. Tell him that he is confused or that he does

not understand. If a judge is unable to
follow your argument, the best way to
handle it is to pretend that it is your fault
213

for not making things clear to him. Say

something like:

“Yang Arif, I apologize for not being

able to make my arguments clear.
Please allow me to try to restate my
argument better.”

6. Put off answering his question;

7. Ignore the “Silent” judge. Even if the judge

is silent, ask him if you might assist him in
any way by saying,

“Yang Arif, would you like me to

clarify my position at this time?”

8. NEVER try to bluff your way through a

question. If you do not know the answer,
apologize and request to move on to the
next submission;

9. Don’t give up so easily! At least attempt to

ask the question. Do not bluff but attempt
at answering the question with whatever
knowledge that you do have. However, if
having done this still does not answer his
question, then apologize and say that you
can longer assist the court on that matter.
214

F. How Judges Can Be Helpful

A useful attitude that you can adopt is by viewing

response from the judge, no matter how
daunting can actually be helpful. Through it you
will be able to respond to their concerns and
better the chances of you persuading them to
accept the merits of your case. There are
circumstances where the judge is genuinely
trying to help you. So do not assume that every
question that comes from him is aimed at
destroying your argument! There are times when
the question or comments are given to help you
out of a sticky situation. This is especially so in a
situation where the judge may be feeling sorry
for you when his brother judge is giving you a
hard time. So pay attention! Learn to recognize
these questions and upon answering them thank
the judge for his assistance.