A GUIDE TO MOOTING

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 moot court - argue on the point only

Introduction
 Moots have been a most important part of
life and education of law students and
lawyers.
 Fluency and clear enunciation are
particularly important for the lawyer.
 Taking part in moots help the would-be
lawyer in these respects, and gives him or
her experience in the art of persuasion, and
of putting a case succinctly and intelligibly,
as well as help hone general skills such as
public speaking, research and presentation.
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Introduction

 This guide to mooting –

◼ is easy to read;
◼ is intended for students with little
or no experience of mooting;

The life of law has not been logic; it has been

experience.
−Oliver Wendell Holmes

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PART 1 –
PRELIMINARIES
 Contents
◼ What is mooting?
◼ Participants in a moot
◼ Moot Court Layout
◼ What takes place in a moot?
◼ Conclusion of a moot
◼ Why moot?
◼ Moot differs from mock trial
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What is mooting?
 A moot is the argument of legal
issues raised by a hypothetical case.
 It takes place in an imaginary
setting of a court of law – Moot
Court.
 The argument follows the
conventions of argument used in a
real court.
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Participants in a moot
 5 (or more) participants:
◼ 1 judge (or a panel of judges)
◼ 4 mooters in 2 teams:
 Appellant
◼ Lead Counsel for Appellant
◼ Junior Counsel for Appellant
 Respondent
◼ Lead Counsel for Respondent
◼ Junior Counsel Respondent
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Moot Court Layout

Moot judge

Clerk of the Court

Respondent: Appellant:
Lead Counsel Lead Counsel
Junior Counsel Junior Counsel

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What takes place in a moot?
 Legal issues raised by the hypothetical case
are argued in a way which reflects the form
and substance of the legal arguments in a
real court.
 The hypothetical case is referred to as the
moot problem. It is devised in order to
highlight particular issues of doubt in the
law.
 The issues of doubt may arise from case
law or statute. They are referred to as
grounds of appeal.
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 ground of judgment: reason of the decision

What takes place in a moot?

 Most moot problems contain 2 grounds of
appeal.
 Each member of each team argues one
side of each ground of appeal. They are
described as making submissions on the
relevant ground of appeal.
 The Lead Counsels for Appellant and
Respondent make submissions on the
first ground.
 Junior Counsels for Appellant and
Respondent make submissions on the
second ground.

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Conclusion of moot
 Once the arguments have been
completed, the moot judge will
usually give a short judgment.
 The judge will not only reach a
conclusion of the legal issues of doubt
raised by the grounds of appeal, but
will also decide which of the teams of
participants has mooted better than
the other.

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Why moot?
 Mooting helps develop the skills of:
◼ Research
◼ Reasoning
◼ Persuasion
◼ Interpretation
◼ Presentation
 Mooting also helps develop the ability
to counter argument, interruption and
to work in teams.
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Moot differs from mock trial
 A mock trial is an adversarial exercise.
 It is intended to test the evidence in a
hypothetical case in a hypothetical court.
 It is designed to establish the facts of the
case.
 It is designed to test skills of handling and
presenting evidence, which involve
examining, cross-examining and re-
examining witnesses.
 Mock trial is set in court of first instance.

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Moot differs from mock trial

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PART 2 –
PREPARING FOR THE MOOT
 Contents
◼ Getting started
◼ Working out arguments
◼ Splitting the work
◼ Supporting arguments
◼ Golden rules

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Getting started
 The very first thing to do is to acquire
an understanding of both the facts and
the legal issues of the moot problem.
◼ Look carefully at the problem.
➢ summarise it; and
➢ work out what area or areas of law the problem
deals with. e.g. crime / tort / property / contract /
employment law.
◼ The facts of the problem are the skeleton of
the moot and must be known accurately so
as to support the legal arguments.
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Getting started
 Then ascertain the legal submissions
to be made.
◼ Where the moot is an appeal, ascertain
the precise grounds of appeal.
◼ The grounds are usually stated in the
problem itself.

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Getting started

 The next step is to research the law

involved in the problem from both sides.
 This is to get a clear idea of the arguments
on both sides which in turn will help –
➢ make a well reasoned argument; and
➢ prepare a mooter to answer questions that may
be raised in the moot
“He or she who wants to become a lawyer, and not merely to pass law
examinations (which is not at all the same thing), must learn to use legal
materials.”

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Getting started
 For legal research, there are generally two
places to start –
◼ Firstly, you can look the area of law up in a law
textbook, read the chapter or section on it, and
find out the names of some relevant cases, as
well as getting a picture of what the case is
about and what the real issues to be argued
are.
 There are a number of general textbooks on legal
subject areas which are useful to get you started.
 It is vital that you use the most up to date version
of any textbook.
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Getting started
◼ Secondly, if the moot problem mentions the
names of cases, you can look these up directly,
and reading through them may give you a
clearer idea of the likely problems to be
encountered in the moot.
 The judgment in a case will refer to other cases,
which may also be worth looking up.
 Where the case is in the Court of Appeal or below,
you should check that there has not been a
subsequent appeal and a different decision.
 Online research tool are useful for checking up-to-
date cases as well finding a list of relevant cases.

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Getting started
◼ Additionally, it is also advisable to read
related articles in the journals or
periodicals.
 These will not only improve one’s
understanding on the point of law, but may
also afford an extra line of argument and can
be cited during the moot if necessary.
 But bear in mind that academic articles are
not binding; they are merely persuasive.
Lawyers do not know much more law than other people, but they
know better where to find it.
− George III

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Working out arguments
 After a quick look at the cases or
textbook, you should be beginning to get
an idea of what the case is about.
 The next step is to work out exactly what
you are trying to argue, so that you can
begin to identify and find authority for
points in your favour.
 Unfortunately, this is not easy, and is a
point where many first time mooters can
become very confused.
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Working out arguments
 The process of formulating arguments
involves –
◼ reasoning; reason to appeal
◼ analysing; and
◼ relying on authority.
 You can generate arguments based on –
◼ common-sense notions of justice and equity
◼ statutes and jurisprudence
◼ public policy
 It is often useful to write down exactly what
you are arguing.
6/1/2022 "Reason is the life of the law; nay, the common law itself is nothing else 22
but reason...The law, which is perfection of reason."
- Sir Edward Cooke, First Institute [1628]
Working out arguments –
court of first instance
 If you are counsels for the
plaintiff/applicant in the court of first
instance –
◼ you must argue in support of the grounds
raised by plaintiffs/applicants.
 If you are counsels for the
defendant/respondent in the court of first
instance–
◼ you must argue against the grounds raised by
plaintiffs/applicants.

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Working out arguments –
Court of Appeal
 If you are counsels for the appellant in the
Court of Appeal –
◼ you are appealing against the decision of the
judge at first instance;
◼ you must argue against the reasoning of the
first instance judge, and support the grounds of
appeal.
 A Court of Appeal case is often won by careful use of
Federal Court authorities, which are binding on the
Court of Appeal, if they can be shown to be
appropriate. we use COA case to support argument

 The Court of Appeal will also generally follow its own

previous decisions.
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Working out arguments –
Court of Appeal
 If you are counsels for the respondent in
the Court of Appeal –
◼ you must respond to the grounds of appeal
put forward by the appellant, as your aim is to
have the Court of Appeal judgment reaffirmed;
◼ You must argue the reverse of what is stated
in the grounds of appeal
 In other words, you must argue the opposite of that
stated in the grounds of appeal.
 If any Court of Appeal judgment is given in the moot
problem, you must find authority to support the
arguments made by the Court of Appeal judge.

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Working out arguments –
Federal Court
 If you are counsels for the appellant in the
Federal Court –
◼ you are appealing against the decision made in the
Court of Appeal;
◼ the Court of Appeal judgment is often stated in the
problem, and you must argue against the reasons
given in that judgment.
 You are usually helped by a statement of the grounds
of appeal. These are the points which you must argue.
 What often wins the case is sound reasoning, and
disguised policy arguments. The Federal Court can
depart from its own previous decisions if the earlier
cases are carefully distinguished on their facts.

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Working out arguments –
Federal Court
 If you are counsels for the respondent in
the Federal Court –
◼ you must respond to the grounds of appeal put
forward by the appellants, as your aim is to
have the Court of Appeal judgment reaffirmed.
 It is usually necessary to argue the opposite of that
stated in the grounds of appeal.
◼ If any Court of Appeal judgment is given in the
moot problem, you must find authority to
support the arguments made by the Court of
Appeal judge.

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Splitting the work
 Once you have identified the arguments
to be made, split the work between the
two counsels/mooters.
 Work together - have a working
knowledge of each other’s arguments.
 Usually, a moot problem will have two
grounds of appeal.
 At this point, decide who will be (first)
counsel and co-counsel.
Supporting an argument
 There are a number of ways to support a legal
argument –
◼ authority
◼ reason and logic
◼ policy arguments
 By far the most important of these is the first.
◼ Any legal argument should be firmly founded in
authority.
 Reason and logic as well as policy arguments
should be used so subtly that the judge is not
aware of their existence.
Supporting an argument
 Care needs to be exercised in the
choice of authority, as the effect will
depend on the court in which the case
is heard and also the judge's own
preference.
 Mooters should always refer to case
law carefully – avoid embarrassing
mistakes
Supporting an argument
 Use of textbooks and articles
◼ Use textbooks rarely.
◼ A textbook may only be used if it is a
leading authority on the subject, as
defined by practising lawyers, not
lecturers.
◼ Practitioner texts which could be
considered can often be identified because
they usually have the author's name as
part of the title. Examples include:
 Snell's Equity
 Chitty on Contract
 Clerk and Linsell on Torts
 McGregor on Damages
Skeletal arguments
 A skeletal (or skeleton) argument is a brief
statement of the legal arguments of a
counsel.
◼ It must be taken seriously as it is part of the
memorial and available to the judge beforehand.
◼ It makes reference to the authorities being relied
on for each contention in the arguments.
◼ However, there may be restrictions on the number
of cases that may be referred to. Therefore, it is
best to refer to the most relevant and
authoritative cases.
Skeletal arguments
 A good skeletal argument is one that
is –
◼ brief;
◼ in simple language;
◼ intelligible; and
◼ clear and structured.
 Aim for ABC –
◼ accuracy;
◼ brevity; and
◼ clarity.
A lawyer is a person who writes a 10,000-word document and calls it a "brief."
- Franz Kafka
Bundle of authorities
 Your skeletal argument will
make reference to the
authorities being relied on
for each contention in the arguments.
 You must therefore prepare a bundle of
authorities. This will also be part of your
memorial.
◼ Arrange your authorities in the order they are to be
cited – it makes for easy reference and smooth
presentation of your arguments.
◼ It is wise to flag the authorities and to highlight the
portion of the authority that you will citing to the court.
Golden rules
 Everything you put to the judge in a speech
should be supported by some sort of legal
authority.
◼ The judge is liable to ask, quite rightly, 'What is
your authority for that counsel?'
 You cannot make up arguments out of thin
air.
◼ The only possible exceptions to this are a simple
logical statement arising from the facts stated, or
a comment on policy.
 The facts of the case are not in dispute.
◼ The moot argument is on the law, not on the
validity of any factual evidence.
Prepare and practice
 Preparation is key to being a good
advocate.
 Practice make perfect. It is by which
you –
◼ improve your argument;
◼ grow comfortable with the language of
the court;
◼ build up confidence.
"It usually takes three weeks to prepare a good
impromptu speech."
- Mark Twain
Closing speech
 It is a good idea to memorise the
concluding sentence of your
submission, even if it is only –
◼ ‘My Lord, I submit that this appeal
should be allowed/dismissed.’

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Part 4- Best Practices &
Advocacy
 The purpose of your speech is to communicate
and persuade. It is thus essential that the
judge can hear and understand you.
◼ Speak clearly
◼ Vary your tone of voice
◼ Use short, concise sentences (time is limited)
 Pace your arguments.
◼ Speed can be disastrous – do not gabble talk rapidly and unintelligibly
◼ A speech in court should be made at a pace slower
than is usual in ordinary conversation
 Do not exceed time limit.

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Best practices
 When speaking, stand still.
◼ Do not shuffle about
◼ Hands on notes
◼ Odd expressive gestures
 Give your argument an air of authority.
◼ Never say ‘In my opinion’ or ‘I think’
◼ Use ‘I submit’ or ‘It is my submission’
 You are mooting like a lawyer, so behave
like one.

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Preparation of Memorials

 Each team must prepare and submit (1) Hard Copy and
one (1) Soft Copy in PDF format of the memorial.
 The copies will be allocated to:
◼ (1)One for opposing counsel (Soft Copy);
◼ (1)one for oral assessor & memorial assessor.
 Teams must also have two(2) hard copies for themselves
for easy reference during the Moot.
 Must be submitted at the date, time and place to be fixed
by the moot administrator. madam (moot judge)
 Late submission will incur penalty (deduction of marks)
 Language of the memorials:
◼ either in English or Bahasa Malaysia, as specified by the
Moot Administrator
 Format:
◼ The font and size of the text of all parts of the
Memorial, including footnotes, must be the same and
must be in Times New Roman, 12-point
◼ The text of all parts of the Memorial, except the Cover
Page, Table of Contents, and Table of Authorities, must be
double-spaced, justified, and paginated
◼ Quotation to sources outside of the Memorial must be block
quoted (i.e., right and left indented) and must be single-
spaced.
 The Memorial must contain the following parts only :
◼ (a) Cover Page;
◼ (b) Table of Contents;
◼ (c) Moot Problem
◼ (d) Clarifications to moot problem & answers
◼ (e) Lead Counsel skeletal argument
◼ (f) Lead Counsel written submission
◼ (g) Co-counsel skeletal argument
◼ (h) Co-counsel written submission
◼ (i ) Index of Authorities;
◼ (j) Bundle of Authorities;
 The Colour of the Memorial Covers
◼ The Appellant’s Memorial Covers shall
be in Blue
◼ The Respondent’s Memorial Covers
shall be in Orange
◼ (Depending on the case, the “Appellant”
may sometimes be more appropriately
called the “Applicant.” e.g. in judicial
review case)
Information content on the
Memorial Cover
 (i) the team number
 The team number must be placed in the upper right-hand corner of the
outside front cover of each Memorial.
◼For example, for team number A1, the identification of A1 would appear at
the upper right hand corner of the outside front cover of the Appellant
Memorial.

 (ii) the name of the court;

 (iii) the year;
 (iv) the name of the case; and
 (v) the title of the document (i.e.,
‘Appellant/ Respondent’s Memorial’).
Sample Cover

IN THE COURT OF APPEAL OF MALAYSIA IN PUTRAJAYA

(Appellate Jurisdiction)
MOOT NO. J-02-25-15

BETWEEN
STATE THE NAME OF THE APPELLANT …APPELLANT
AND
STATE THE NAME OF THE RESPONDENT … RESPONDENT
________________________________________________
APPELLANT/ RESPONDENT MEMORIAL
________________________________________________
Written submission format
 Facts of the Case ( to be highlighted by Lead Counsel)
◼ State the facts of the case / background of the appeal
 State the Grounds of Appeal
◼ State all grounds of appeal before dealing with each
one of them
 First ground of appeal
◼ Argument
▪ The Law
▪ Application
▪ Conclusion
 Closing Submission
Bundle of Authorities
 Bundle(s) of Authorities are documents in
support of the appeal.
 Documents obtained from online sources must
be reduced to hardcopy, as much as possible in
PDF format.
 Examples of authorities include statutory
law and case law.
 The number of authorities cited in each
Memorial must not be more than ten (10)
Index of authorities
 E.g
◼ Article 4 of the Federal Constitution
◼ Section 10 of the Contracts Act 1950(Act
136)
◼ Ah Thian v Government of Malaysia
(1976) 2 MLJ 112
Memorial Marking

 quality of legal arguments, support

by authorities,
 compliance with the required
format,
 inclusion of all parts of the
memorial,
 grammar and spelling, quality of
writing, organization and
footnoting/citing.
Oral Assessment

 The oral assessment will be based on

advocacy skills (ability to present in
a convincing, concise and precise
manner), presentation skills (voice,
body language, presentation style,
confidence, etc.), and courtroom
etiquette (dress, addressing the
judge, proper language, pacing, etc.).