Mooting and public speaking: Speaker’s Corner
Mooting and public speaking: Speaker’s Corner
7.1 INTRODUCTION
You know you should do it but it feels so wrong. What on earth are we talking about, trying sushi for the first time, bungee jumping . . . nope it must be speaking in public just like they do in the House of Commons (yawn fest). Think you can do better than those politicians and barristers, then read and take note.
Regardless of where you see the law taking you, public speaking expertise is valued highly. Verbal reasoning is a key transferable skill, which can be used in numerous situations; you could be giving a presentation in class, putting yourself across well at an interview, networking, or in a formal setting taking the form of a debate or moot competition.
There are a number of different scenarios in which you may find yourself speaking in public. You may get involved in mooting and debating competitions, in which you will only succeed if you confidently articulate your arguments to others. You may be lucky enough to secure an assessment day with a law firm, which will involve others assessing your verbal reasoning skills, with a view to deciding if you should be offered an interview for a further interview! For those of you who like to get stuck into university life, you may put yourself forward for a position of responsibility, which will involve you representing student views at meetings with your lecturers and head of schools and let’s face it; you will want to keep them on side with everything that you say. To be able to get through your degree you will have to participate in tutorials and presentations. Tutorials are the perfect environment to allow you to engage in discussion and debate with your fellow students and your lecturer. Speaking up in tutorials can be daunting but once you start engaging in discussion, your confidence will grow and your public speaking skills improve within a matter of weeks. It is therefore vital that you fully participate in your tutorials. Those of you who are thinking that you will sit strategically hiding behind a fellow student and say very little, trust us we shall expect you to talk! But let’s not forget another important situation in which your public speaking skills will be put to the test, the all-important interview. If you have not taken advantage of developing your public speaking skills and thereby your verbal reasoning skills, this will, unfortunately, become apparent in interviews.
Aside from engaging in daily verbal reasoning in tutorials, competing in moot competitions is the most effective way to improve your verbal reasoning skills. Mooting requires you to think on your feet and so your ability to quickly come up with and respond to arguments becomes sharper. A moot is a fictitious case, which is being appealed and will be heard in an appellate court. The appeal is based on points of law that you have to consider, argue and present. You will be assigned a side by the moot organiser so you could be appearing either for the appellant or the respondent. There are usually two grounds of appeal and each team usually consists of a senior and a junior member. You will have to decide with your moot partner whether you will be the senior or the junior in your team, although the best way to do this is to look at the grounds of appeal and tackle the ground of appeal that you feel most comfortable with. You will then have to conduct your legal research, write a skeleton argument and prepare your submissions.
Entering into moot competitions can of course have other benefits such as networking with the professionals, enhancing your CV and perhaps winning some prize money (see Chapter 8 on employability for more examples of how to enhance your CV). As a newbie to law, mooting is one of the few ways you can do something that feels like you’re practising ‘being a lawyer’ since a lot of the pro bono and client-facing opportunities don’t become available until you have a little more law under your belt.
The rest of this chapter will focus on public speaking in the context of a moot but most of this advice applies to all public speaking scenarios.
7.2 WHY MOOT?
So why put yourself through it? The obvious benefits of entering into moot competitions include networking with the professionals, enhancing your CV and perhaps winning some much needed prize money. Your research skills will be given a thorough workout; there are so many sources to use and dense academic writing can be hard to get through – we’ve covered this in Chapter 4 on legal research. In mooting you might wow with your advocacy skills but without solid research into the problem, the judge will soon pick holes in your argument. What’s pretty cool about researching for a moot problem is that if that subject comes up when you’re sweating it out in an exam room you will be home and dry.
With regard to networking; moots are presided over by a moot judge – a role played generally by a barrister, a solicitor, a law academic or sometimes by an actual judge (see 8.6 ‘Take it!’ for further advice on networking). These people will have given up their time to perform this role and will often be happy to stay on and chat further after the moot has ended. It’s a great opportunity to make all-important contacts, with student mooters sometimes gaining chances to shadow someone in court, do some marshalling, secure a mini-pupillage or just a promise of future guidance for applications.
7.3 WHAT COMPETITIONS AND HOW DO YOU GET INVOLVED?
Internal competitions are usually run by your law school – they offer an opportunity to start mooting in slightly less terrifying surroundings. You may find your school has a competition just for your cohort (e.g. for the GDL course) or that there is a moot that students in all programmes can enter.
Externally there are loads of competitions your university can enter teams into.
In the UK the most established competitions include the ICLR National Mooting Competition, the OUP/BPP National Mooting Competition and the ESU/Essex Court National Mooting Competition. There are also those competitions run by student societies like the National Law Student Association and the UK Law Students Association. Undergraduate students in London have the great London Universities Moot Shield (LUMS) to get involved with.
There are a number of inter-varsity moots run by universities and also by some of the Inns of Court. These are usually one-day events that operate on a knockout basis. In addition, some sets of chambers run a moot in their area of practice; for example Francis Taylor Building run a very prestigious moot in the areas of Public and European Law.
Some moot competitions pivot around one specialist area; the University of Oxford run an Intellectual Property Moot and a separate Media Law one. However, these specialist moots often take place outside the UK; there is the Vis Arbitration Moot (Vienna); the European Moot Court (Europe – location changes annually); European Human Rights Moot Court Competition (Strasbourg); and the granddaddy of them all, the Jessup International Law Moot Court Competition (USA). These moots differ tremendously from domestic competitions and demand a huge commitment, as the workload is weighty.
7.4 MOOTING BASICS
So let’s get to grips with some basic terminology that you will encounter in mooting.
Rule 52.1 of the Civil Procedure Rules helps us to explain the first five terms:
• Appeal: includes an appeal by way of case stated.1
• Appeal Court: the court to which an appeal is made.2
• Lower Court: the court, tribunal or other person or body from whose decision an appeal is brought.3
• Appellant: a person who brings or seeks to bring an appeal.4
• Respondent: a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and a person who is permitted by the appeal court to be a party to the appeal.5
• Claimant: the person who made the original claim.
• Defendant: the person who was asked to defend the original claim.
• Ground of appeal: the reason the appellant disagrees with the decision of the trial judge.
• Submission: the formal argument that you put forward on the disputed point of law. This can be both oral and written, and will be a combination of your party’s reading of the law and any applicable evidence. When speaking, you may begin your arguments to the Court by stating ‘We submit’ or ‘In our submission’.
• Cross appeal: where both parties are unhappy with parts of the first instance judgment and appeal on different points.
• Doctrine of judicial precedent: this explains how cases relate to each other by drawing on the decisions made in the past on similar issues, i.e. if something has worked well in the past, we should follow a similar approach in the future.
• Skeleton argument: comprises the outline of your argument, given to the judge and your opponents prior to the moot.
• Exchange of skeleton argument: the occasion of exchanging an outline of your argument to the opposing side.
7.5 WHAT MAKES A GOOD MOOTER?
All moots will have slightly different judging criteria, but generally speaking you will be judged on the following:
• dress/etiquette;
• skeleton argument;
• bundle;
• dealing with judicial interventions (aka responding to questions);
• presentation of legal argument;
• content of legal argument; and
• strategy or style may also be judged in some competitions.
We’ll cover all of these areas in the rest of the chapter – giving you advice on how to get the best marks, and we’ll throw in some examples of what not to do!
7.6 GIVE ME THE BASICS: HOW DOES IT WORK?
People often think of mooting in relation to the event itself, but most of the work is done beforehand. First thing to happen is that you will receive your moot problem.
The moot problem will be a fictional one, which is far from cut and dried on either side. Obviously the phrase ‘moot point’ comes from the concept of something being able to be argued either way.
Most moot problems are situated in the appeal courts – the Court of Appeal or the UK Supreme Court. Basically speaking, the case has already happened and there has been an appeal against the earlier decision. You will either be the appellant – who believes the trial judge was wrong in the earlier incidence of the case and wants the decision reversed, or you will be the respondent who will want nothing changed and believes the trial judge to be correct.
Generally speaking there are two members in a team – the senior and the junior. In the ‘real world’ of the courtroom these would be termed leader and junior. The moot organiser will specify if you are to represent the appellant or the respondent.
Each moot will normally have two grounds of appeal so the senior appellant and respondent will deal with ground one, while the junior appellant and respondent tackle ground two. These will sometimes overlap when the judge asks you questions so you need to have an understanding of both grounds, regardless of your allocation. Note that some external competitions will have a different order of submissions.
7.7 WHO DOES WHAT?
7.7.1 Senior
Like the host at a party, senior counsel for the appellant must take responsibility for putting everyone at ease. They must introduce themselves, their junior and the respondent counsel, as well as giving the judge a summary of the facts within the appeal.
Senior counsel for the respondent has slightly reduced responsibilities: introducing themselves and their junior to the judge. A summary isn’t required unless they feel their opposition have missed something out.
Good practice is that senior members offer the judge a summary of their submissions before stating what action they wish the court to take, and passing over to their junior.
7.7.2 Junior
Junior counsel will introduce themselves and deliver their submissions on the remaining ground. They will also be responsible for knitting together the submissions for both grounds to present to the judge, along with inviting the judge to either grant or dismiss the appeal.
7.8 PRESENTED WITH A MOOT PROBLEM
When you receive a moot problem you might want take a moment because you will probably think that you are in trouble and on the losing side. Everybody thinks this! Your opponents think this. Moots are purposely designed to challenge both of the parties competing. You will do well to remember that a barrister will read their brief and get to work thinking about how they must represent the best interests of their client rather than whether they are on the winning or losing side.
Working your way through the moot problem in a logical manner is essential. The following steps will help guide you through the moot problem.
MOOTING GUIDE
(i) Read through the moot problem carefully. The facts and/or initial judgment may not seem favourable to you and you may start feeling like you are really up against it. Just remember, moot problems are designed to test your ability to think on your feet and articulate arguments. They are not designed to be easy, otherwise wouldn’t everyone be studying law? Determine what area of law you have to deal with and what specific topic is being addressed in the problem.
(ii) What was the decision of the lower court? What were the reasons for its decision and what legal authorities or principles were applied? These authorities and/or principles will provide you with a platform for understanding the initial decision and for preparing your legal arguments.
(iii) Which side are you on? You will be told whether you are appearing for the appellant or the respondent. You will also have to determine with your moot partner, what ground of appeal you are dealing with.
(iv) Read through, in full, all of the legal authorities that have been relied upon to reach the decision in the lower court. The key to being a good advocate is to identify the strengths in your arguments as well as the weaknesses. Being prepared in this way will mean that you are not caught off guard in responding to judicial interventions and that you will be able to identify the strengths and weaknesses in your opponents’ arguments. Consider how the authorities have been interpreted and applied; would you apply them differently?
(v) Make a list of case law and any other relevant legal authorities.
(vi) Start your research.
(vii) Prepare three bundles – one for yourself, one for your opponent and one for the judge.
(viii) Prepare your submission.
(ix) Draft your skeleton argument.
(x) Exchange your skeleton arguments.
Now we need to put these steps to the test using the following moot problem as an example:
IN THE COURT OF APPEAL
Linda Cahill
V
Bulldozer Builders
Linda Cahill decided to have some renovation work carried out on her house. Her friends recommended a company called Bulldozer Builders. Linda invited Bulldozer to quote her for the work that she wanted to have carried out. Bulldozer inspected the building and on account of this inspection, quoted Linda £50,000 for the work. Linda and Bulldozer agreed that the work would start 1 February and if the work finished by 1 June a bonus of £5,000 would be payable by Linda. Linda explained that it was her daughter’s first birthday and she is hosting a big party on 11 June and needs time to set things up for the party. Bulldozer sent over their standard contract to Linda for her signature on the contract, which included the clause about the bonus payment but mistakenly unknown to both parties, the date stated was 10 June rather than 1 June. Linda signed the contract without reading it and did not notice the difference in the date.
Bulldozer duly started the building work and Linda, being so impressed with the standard of their work, asked for a quote to build a garage alongside her house. Bulldozer said that they would add that to their workload and that it would cost £7,000 although they would need this payment upfront to help pay for materials. Linda signed a new contract for the additional building work and happily paid them £7,000 in advance.
When Bulldozer were beginning to dig the foundation for the garage floor, they came across what was discovered to be an unexploded World War II bomb. Bulldozer immediately stopped their work and called the Army bomb disposal team. Bulldozer refused to build the garage as they had already spent £3,000 on materials and it would cost an additional £5,000 to complete due to the days they had lost while waiting for the bomb to be disposed of. The result would be that they would be late beginning their next contract with another party and be in breach of that contract.
Linda asked for her £7,000 to be repaid due to a total failure of consideration. Bulldozer refused to pay in accordance with the following clause in their contract:
3.1.1 While best endeavours will be made to complete all work, we shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is due to events beyond our reasonable control, including but not limited to acts of God, war, strikes, government orders or any other force majeure event.
The trial judge accepted that in accordance with the principles of offer and acceptance, the relevant date by which the work was to be completed for the bonus to be payable was 10 June and that nothing outside the four corners of the contract could be used to contradict what is contained in the contract as per L’Estrange v F Graucob Ltd (1934) 2 KB 394.
The trial judge declined to accept Bulldozer’s argument that the discovery of an unexploded World War II bomb frustrated the contract or that its discovery of the bomb falls within the scope of clause 3.1.1 and thus does not invoke the clause. In accordance with Davis Contractors Ltd v Fareham UDC [1956] AC 696, mere hardship or inconvenience will not frustrate the contract. In addition, a force majeure event must specifically be stated in a force majeure clause for it to be effective.
Linda appeals to the Court of Appeal on the first ground:
(i) That the contract must be interpreted in accordance with the parties true intention which here was that a bonus payment would only be payable if the building work were to be completed by 1 June and the discussion that she had with Bulldozer should be taken into account and the agreement should be rectified to reflect the true intentions of both parties.
Bulldozer cross-appeal to the Court of Appeal on the second ground:
(ii) That the trial judge erred in applying the doctrine of frustration since it is near impossible for Bulldozer to perform their obligation under the contract and in the alternative, the trial judge interpreted clause 3.1.1 too narrowly as the discovery of the unexploded World War II bomb is an eventuality that falls within the scope of the clause and the contract is therefore frustrated.
7.9 WORKING THROUGH A MOOT PROBLEM
7.9.1 Read though the moot problem carefully
Reading through this moot problem, you should be able to identify the following things:
• Who are the parties?
– They are Linda Cahill and Bulldozer Builders.
• Who is the appellant and the respondent?
– With respect to the first ground of appeal, Linda is the appellant as the decision in the lower court went against her and she would like this part of the decision to be reversed. Bulldozer are the respondent.
– With respect to the second ground of appeal, Bulldozer are the appellant as the decision in the lower court went against them and they would like this part of the decision to be reversed. Linda is therefore the respondent.