Making submissions

Do not read a pre-prepared speech. Making submissions involves using a structured set of notes which elaborates on the skeleton argument. Counsel should take their time, ensuring that they maintain an even and steady pace. Be clear, be concise, and be persuasive. Although mooting requires a degree of formality, also try to maintain a natural conversational style. In terms of content, submissions should be a blend of legal argument on the facts of the case supported by reference to legal materials. Always argue with reference to authority, applying the law to the facts given in the mooting problem. There will never be call to argue over the facts of the case. All necessary facts are given and are not open to dispute.

The key to successful mooting is to  argue by analogy, and to argue by distinction, using your materials, and those provided by the opposing Counsel, to show the differences and similarities between the materials and the facts of the moot problem. In short, why do your authorities apply and why do the opposing team's authorities not apply. Authorities should ideally be taken from the highest authority and mooters should know whether a decision cited is binding upon the court in the instant case, or whether it is merely persuasive. For example, an International Court of Justice decision between member states would be binding on state parties as a matter of international law. However, a decision of a member state’s court would not be binding on the ICJ. Thus, the opposite would not apply.

When citing a case, use the following approach. If you wish to cite US v Alvarez-Machain, 504 US 655 (1992) you would state, for example, 'I would direct your Honour to the case of United States against Alvarez-Machain, that is at Tab 3 in your bundle. This is a United States Supreme Court case decided in 1992. If I could direct your honour to page 659 of the judgment and the highlighted passage..." Always wait for the Judge to find the passage before proceeding to quote from the case or legal material.

In response to questions, mooters should avoid stating 'I think...' as the Judge is not concerned with Counsel's opinion. Rather, the Judge wishes to know how the submissions and authorities advance Counsel's case in relation to the facts. A more suitable response is to say 'It is our submission that...' or ‘The authorities would suggest that…’ If the Judge is unconvinced by a particular line of argument then rather than engaging in a protracted discussion it may be better to state. 'That is our submission. With your honour's permission we will now proceed to the next submission,' and move swiftly on. If the Judge asks Junior Counsel a question which will be dealt with by Senior Counsel then it is permissible to state 'My learned Senior will deal with that point in their submissions.' Where the question relates to a point which will be dealt with later in the instant submissions it is permissible to state that ‘I intend to address that point later in my submissions’ and then to proceed. In both circumstances, ensure that the point is in fact dealt with!

Be polite and respectful at all times. Mooting is unlike debating and does not reward forceful rhetorical displays. Rather, the tone which mooters should aim for is a directed and helpful conversation in which Counsel leads the Judge through their submissions with reference to authority, and explains the latter's relevance to the matter at hand. Mooters should deal with interventions from the bench in a positive manner. Counsel should not interrupt the Judge, nor speak with team mates during opposing Counsel's submissions, though taking notes is essential. Finally, it is important to dress smartly.