Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode V: ‘How to Fight Stress’

Hello everyone,

mooting in general and pleading in particular is a potentially stressful activity. No matter how laid-back your attitude is, no matter how well-prepared you are, no matter how much experience you have, when you enter the courtroom, you can become really nervous! And it fine – as long as it does not affect your performance, of course. I have seen extremely knowledgeable speakers being overwhelmed by stress they feel when they are in front of the tribunal. It is always a pity to see people who were ready to beat every opponent and sway every tribunal in their favour – but lose only with themselves. That’s why everyone should learn a couple of ways to combat moot-related stress!

  1. Jog

Stress generates pressure that our body has to release. The worst part is that pleading involves very little physical activity that we are prepared for under stressful circumstances. Arbitrators are nor predators and we do not confront them by fighting or running. As a result, mooties end up seated behind a desk with only their willpower to suppress their nervousness.

However, there is a way to cheat your organism into believing that the danger is gone. Just before the pleading you can try to jog in place for a short time. This way you will release some pressure your body accumulates every time it feels threatened. A short jog in place before the pleading can help you enter the courtroom more relaxed. Just make sure the tribunal does not see you do it!

  1. Drink a lot of water

Drinking a lot of water before and during the pleading is essential to remain effective when stressed. When you are nervous, you sweat more and your throat becomes dry. In consequence, your voice projection is worse and instead of focusing on your arguments, you focus on how difficult it is for you to speak. Drinking water will hydrate you and cool you down, so always make sure there is a bottle or two nearby!  Make sure that water is still – sparkling water makes your throat drier and can have some other unexpected side effects, so you better avoid it…

  1. Music

Music has been known for ages to be an excellent remedy to stress. It can deeply affect our mood – for the better, or for the worse. You know best what kind of music settles you down – use it to your advantage when needed! A short piece before your pleading when you need to calm down, focus and clear your mind can do wonders. Just make sure you do not annoy other people around you.

  1. Meditate

Although it is somewhat more advanced and requires more effort and consistent practise than the abovementioned ways to relieve stress, it has the potential to give you a lot of control over your emotions. I personally never tried it, but I met plenty of people who praised meditation for giving them clarity and focus that is necessary to perform intellectually challenging tasks – like pleadings. They say it takes time and practise to really feel its impact, so if you wish to try this technique out, you probably should do so a couple of weeks before the actual competition.

  1. Be well prepared

Last but not least, probably the best way to eliminate stress is to strike at its very source. Most people become stressed when they feel unprepared, that they failed to check all the boxes on their lists. When you enter the courtroom aware of the fact that you did everything you could to get ready for the challenge ahead of you, then you are far less likely to become too nervous! Fortune sometimes favours the bold – but more often it favours the ones who are prepared.

I hope these ways of fighting stress will come in handy. Try them out and check which one works best in your case!

All the best,

Marek

 

Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode IV: ‘Interaction with Arbitrators’

Hello everyone,

it is the fourth episode in the Advanced Oral Advocacy season! Today we will explore the rules of interacting with arbitrators.

The impression you leave matters a lot when arbitrators score your pleading. Interacting with them requires courtesy and professional approach. However, drawing a line between what is appropriate and what is not might be tricky. The fact that different arbitrators might have different expectations does not make it easier.

Let’s see how to successfully navigate through these rocky waters!

  1. Arbitrators are always right…

…as long as they do not get the merits of the case wrong, of course. You are free to argue with them about your legal arguments. What you must not do is second-guessing the way they govern the hearing.

When we compare the hearing to an orchestra, arbitrators are obviously its conductors. As a counsel, you can agree with them what kind of piece of music you play and what kind of instruments you can use, but once everything begins, the arbitrators have the final say.

What does it mean in practice? Arbitrators might request you to reverse the order of your pleading. They might ask you to skip certain arguments and move to other issues. To address a point you wished to omit, but they are nevertheless interested in. As a counsel, your job is to deliver what the tribunal requests and attempts to avoid or question their requests will meet with resistance and disappointment. So, when directed by the tribunal, carry out arbitrators’ requests. And do so gladly 😉

  1. Arbitrators have the right to be mean

Do not get me wrong – in the majority of cases moot court arbitrators are positive, open-minded people whose aim is to enjoy the experience, not to humiliate participants. However, as always, there are some people who by their nature might be rough on others, come across as less likeable or simply act in a less courteous way because they have such manner or are having a bad day. Bottom line is, no matter how unpleasant an arbitrator may be, you do not have the right to respond with the same approach. Even if you feel you are being under too much fire, stay calm, composed and polite. As discussed earlier, good manners matter, even if some members of moot panels forget about it from time to time.

  1. Arbitrators love when you pick up on something they said

In the course of every pleading arbitrators ask questions, share their ideas, invite counsels to comment on a particular scenario that they draw or simple demonstrate genuine interest in a particular issue or argument. You should take notice of it, write it down and then use it while you respond or during your rebuttal! Arbitrators will love it if you pick up on a question they asked, concern they shared or argument they seemed to support. By saying: ‘as pointed out by madam arbitrator…’ and developing an argument around it you show that you are attentive, quick to respond and able to establish a connection between you and the tribunal. Sharing arbitrators’ interest in a particular aspect of the case is not about stroking his or her ego. It is about being helpful – if arbitrators focus on something, then it means they find it critical for the case.

Make sure that you do not misstate anything, though. Putting words in arbitrator’s mouth will backfire seriously.

  1. Arbitrators can be asked for something – if you agreed on it previously

Being subordinate to arbitrators does not mean giving up if you believe something that you have the right to is taken away from you. If you agreed on something and arbitrators seem to have forgot about it, just remind them politely, and they will happily agree. In the majority of cases some arbitrators tend to get the time allocation wrong or forget about rebuttals and surrebuttals. If you fail to get the pleading back on the agreed track, you might waste an opportunity to provide the tribunal with a good argument.

All in all, if you follow these rules, you should be able to survive the pleading without insulting anyone – but also without giving up anything you are entitled to!

Best wishes,

Marek

Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode III: ‘Spicing It Up’

Hi all,

here comes another episode of the Moot Court Advocacy Series! This time let’s focus on how to make your pleading more persuasive and memorable for tribunals. You are right: not only its merits matter. You can – and should – use pure rhetoric to your advantage, to turn a bland speech into a brilliant performance.

There is more to oral advocacy, especially in a moot court environment, than raw strength of your arguments. As it has already been discussed in the previous episode dedicated to storytelling, you are far more likely to persuade the tribunal if your pleading is easy to follow and interesting to listen at the same time. You are aiming for something more than a mere recount of arguments. Luckily, there are many tools at your disposal that will help you achieve it.

Using figures of speech effectively is always a balancing exercise. On one hand, it can help you underline your most important arguments, make a complex argument easier to swallow or conceal a weak point in your line of defence. On the other hand – focusing too much on rhetoric can backfire, especially if your opponents join the game and exploit your own words to their advantage.

Let’s learn how to spice your pleading up, how not to overdo it, and what is strictly forbidden!

  1. Metaphors

A metaphor is a figure of speech that directly refers to one thing by mentioning another for rhetorical effect. In a moot court environment you will most often hear metaphors either in the intro, while counsels try to set the stage for the tribunal in an engaging way, or at the very end, to conclude in a memorable way. Sometimes metaphors appear also as a way of explaining a particularly complex argument or stress a crucial set of facts. They also tend

Some arbitrators like metaphors a lot and they will praise you for being able to paint a vivid picture of the case. They usually appreciate the effort made by counsels to add this abstract layer to their pleading, especially if the attempt is made in order to explain a particularly complicated point which would be difficult to grasp otherwise.

However, metaphors can be dangerous as well. The first major risk is the one of being misunderstood. Your most important task as a counsel is to make sure that the tribunal understands the point you are making. Members of moot panels are brainy people, but they come from different cultural backgrounds, have read different books, have seen different movies, have different associations with images and objects you might bring up for the purpose of your metaphor. Bear in mind that a metaphor which is perfectly clear to you might make no sense to some who is much older than you, comes from another country or simply – would never use the same image in this particular context.

The second major risk (and from what I have seen it materializes often) is that your opposing counsels take your metaphor and then turn it against you. Quite often metaphors  to be rather easy to reformulate so that they actually hurt your position. If you find yourself confronted with such opportunity – exploit it mercilessly! Tribunals will usually give credit to your opponent for their attempt, but even more to you for your flexibility and ability to react and think creatively.

In my humble opinion, an elaborate metaphor is a figure of speech that is often overused during moot court pleadings. Since it is difficult to find a metaphor which is clever, relevant and understandable at the same time, counsels tend to clutter their pleadings with the ones which are rather random and unnecessary. I would be extremely cautious with metaphors. Use no more than one throughout the entire pleading, apply it strategically and test several times beforehand to make sure it is understandable.

  1. Quotes

Who does not love quotes? ‘If I have seen further it is by standing on the shoulders of Giants’, Newton once said, and it is true: you can build up on the elegantly phrased, succinct thoughts of other people that suit your line of argumentation. Even though it might seem counter-intuitive in the moot court environment (at the end of the day, it is a formal legal proceeding), I have seen mooties employ quotes quite effectively.

However, there is a catch. Throwing random quotes at the tribunal will not help at all. The quote has to fit the context of the case, come from a know, uncontroversial person which enjoys certain authority. Quoting a successful entrepreneur in order to explain the behaviour of your client in a commercial case or a respected statesman when you represent a public party is probably the best idea.

Remember that quotes can be a double-edged sword, too. A responsive counsel might not have another quote up his or her sleeve to counter yours. However, since application of a quote is a matter of its interpretation, if you do not choose wisely, you might give another party a gift: a way to attack you position by means of alternative interpretation of a sentence or two that were supposed to reinforce it.

  1. ‘Catchy phrases’

Not entirely metaphors, neither comparisons, nor quotes, the so-called ‘catchy phrases’ are usually short phrases which let you articulate a particular thought in a more interesting way which lights up judges’ imagination and automatically engages them. The supply of ‘catchy phrases’ is virtually endless, as the way you phrase or introduce your argument depends on its nature and content. Do you need some examples? There are plenty! From a somewhat overused expression ‘actions speak louder than words’ used to underline inconsistency between arguments made in the courtroom and behaviour of the part visible in the facts of the case, you can carry on and criticize your opposing counsel for ‘cherry-picking the applicable standard’ when they try to selectively apply less and more stringent laws without justification. Instead of saying that the other party is wrong in interpreting provisions of a contract broadly you can call it ‘an unacceptable catch-all interpretation’. And if the other counsel is not too lenient as far as jurisdictional requirements are concerned, instead of explaining to the tribunal that such interpretation is absurd, you should rather claim that they are trying to ‘open a floodgate of claims’. These are just propositions – but if you are capable of inserting a phrase like this here and there you will catch judges’ attention, feed them with thought that will stick and make the whole pleading much more conversation without sacrificing professional allure and healthy distance.

  1. Irony

First of the two figures of speech I would not recommend during a moot is irony. Irony would almost always be perceived as rude and disrespectful either towards the tribunal or the other party. If you are lucky, the panel simply will not get it – but then, they will miss your point entirely and thin you simply must have mispronounced yourself. In conclusion, forget irony – it might be great in social interactions, but not those taking place inside a moot courtroom.

  1. Rhetorical questions

Another one of the forbidden figures it the rhetorical question. The reason is simple – it is the tribunal who asks questions to counsel during a pleading, not the other way round. Maybe when you engage in a very dynamic conversation with a particularly hot bench you can resort to formal question tags in order to stress your crucial points. However, never direct a question at the tribunal and wait for it to be answered.

As you can see, spicing up your pleading is like walking through a minefield: you need to take very cautious steps or otherwise you risk making serious damage to your own position. However, if you succeed, your pleading will definitely win the judges’ hearts!

All the best,

Marek

Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode II: ‘The Art of Rebutting (and Surrebutting)’

Hello everyone!

Today we will discuss an essential part of every moot court pleading – rebuttals and surrebuttals.

In simple terms, a rebuttal is a direct answer to the other party’s oral argument. It usually occurs after both parties conclude their pleadings. The party which started the argument has the right for rebuttal. The responding party has the right for surrebuttal, which is an answer to the rebuttal.

Rebuttals and surrebuttals are important for several reasons. Firstly, they are your last opportunity to make a lasting, positive impression on the tribunal and convince it of the strength of your arguments. Secondly, they are your last opportunity to undermine the other party’s position, cast doubt on its credibility or logic. Effective rebutting and surrebutting is by no means easy: it requires careful selection of arguments and wording, clarity and wit. A brilliant rebuttal can win the hearts of judges and arbitrators. A terrible one – cost you a lost pleading.

How to make sure that you rebut and surrebut in a way that every tribunal will like?

  1. Reserve time at the beginning of the pleading

In order for a rebuttal or a surrebuttal to actually happen, you have to reserve time for it in the first place. At the very beginning of the argument (usually when the panel asks the parties to introduce themselves and give their time allocation) you should mention that the parties reserved time for rebuttals and surrebuttals. You and the other team do not necessarily have to reserve the same amount of time.

Bear in mind that arbitrators at times forget about the fact that the parties reserved time for rebuttals and surrebuttals. If it happens, do not be afraid to remind them that you agreed on it in your time allocation.

Rebuttals and surrebuttals are an essential part of every pleading which is often required under the rules of competitions. However, even if they are not obligatory, I would not skip them: judges and arbitrators enjoy them and might be surprised if the parties agree to skip them.

  1. Make it short

An effective rebuttal (and surrebuttal) is always short. You should not reserve more than one minute for it, and ideally it should take you around thirty or forty seconds.

Reserving two or more minutes for a rebuttal does not make sense. It dilutes the message you want to convey or prompts you to address too many points. Unlike the core submission, rebuttals and surrebuttals must not be extended even if you need more time – you simply have to make it within the time you initially reserved.

Many people believe that they should reserve more time for their rebuttals, because otherwise they will not be able to address all arguments put forward by the other party. It is a mistake – you are not supposed to address ALL arguments. Your task is to pick one or two. Why? It leads me to my second point…

  1. Make it sweet

A effective rebuttal is direct, punchy, concise and memorable. In order to achieve it, you need to follow a few easy rules.

Firstly, you rebuttal should target a point from your opponent’s pleading which is both important and exposed. It makes little sense to pick a secondary issue or a minor mistake – they do not have the necessary potential to turn the case in your favour. Furthermore, you should attack a weakness, an aspect of your opponent’s argument that caused the tribunal to raise an eyebrow over his or her submission. It might be a misinterpretation of facts, an incorrect application of a particular provision, selective quotation from relevant case law… Usually you have at least a couple weak spots to exploit. Which one to choose? You have to judge it on case-by-case basis. The more intimately you know the record and the case law, the more likely you are to connect the dots an deliver a true coup de grâce to your opponent (or save your case on rebuttal).

Secondly, you should address one, maybe two point. You might have four excellent counterarguments, but when you rebut, less is more. You have to leave the judges or arbitrators with a lasting impression that your opponent’s case is ungrounded, that key points in their argument lack merit. It is difficult to do if you try to squeeze too much into a one-minute-long speech. Your arguments are less persuasive and your opponent’s weaknesses less glaring when you elaborate o them for too long. Lastly, the longer you rebut, the more time you give to the other party’s counsel to prepare a defense for the surrebuttal.

Thirdly, your rebuttal  should not provoke questions from the panel. Although it is rather uncommon for arbitrators to ask questions during rebuttals, it happens if counsels say something unclear, controversial or use a sweeping statement that can confuse the panel. There is too little time to shed more light on your position at this point, so be careful.

  1. In your surrebuttal – be responsive

Surrebuttals’ aim is to counter the effect a rebuttal may have. Many moot court participants misunderstand its purpose and try to attack other points from the opposing counsel’s pleading. Unfortunately, when you surrebut you do not have this comfort: a correct and effective surrebuttal counters only the points raised during a rebuttal. This is why it makes even less sense to reserve more than one minute for it – what you actually need is time for a few short sentences explaining why the rebuttal that the arbitrators have just heard is entirely ineffective. All in all, surrebuttal is probably the most difficult part of the responding party’s pleading. You never know what the other party brings up and have literarily seconds to react. Nevertheless, as it is the very last sentence that the bench hears during a pleading, its impact on the result of a hearing can be significant.

  1. Waiver only if you must

In principle, you should never waive your right for rebuttal. Moot court problems are by definition balanced. Whether you represent claimant or respondent, there are always strong and weak points in their respective positions (or good and bad selections of arguments). Even the best opponent will give leave you room for strong counterarguments.

As far as surrebuttal is concerned, the situation is slightly more complicated. Again, in principle you should not waive it. There are two exceptions. Firstly, no surrebuttal can occur if the other party waives their rebuttal. Secondly, if you are confronted with an extremely unclear, pointless or weak rebuttal, in some cases it is fine to let go. Respect the tribunal’s precious time and do not waste it in case it is not worth it.

I hope that now you will be able to turn your pleading into a smooth and .

All the best,

Marek

Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode I: ‘Storytelling’

Do you know what we, homo sapiens sapiens, love above all? Good stories. We have been telling them since the dawn of time. Everyone enjoys listening to gripping tales. Judges and arbitrators are not different.

A case pending before the court is always a story. Unfortunately, it usually seems tedious and complex… unless counsels do something about it. If you are able to turn the facts of your case into a coherent, engaging narrative, then you are in a good position to swing the tribunal in your favour. Your points are more likely to be heard, your arguments will resonate stronger and the panel will have a better understanding of your position. Just because it will pay more attention.

Easier said than done? Each case is different, each provides different challenges and opportunities. However, there are a few basic steps you can take to make sure that the story you will be telling the tribunal is easy to digest and engaging.

  1. Find a theme for your case

A ‘theme’ is an underlying motive you attach to your case. Its aim is twofold: Firstly, it is a glue which binds all your arguments together, the very essence of what your position is all about. Secondly, it should demonstrate that the sense of fairness and justice will suffer if the court or tribunal rules against you. A theme can be understood as a recurring message you put across so that it stays with the tribunal and is taken into account in their decision-making process.

A good theme is short and simple. You should be able articulated in one or two sentences. It should cause no outrage or surprise and be derived from facts and law relevant for the case which support the position of the party that you represent.

Themes can differ significantly depending on the circumstances of each case. They may stress equity or legal certainty, procedural propriety or effective administration of justice. In a commercial dispute a theme can be build e.g. around an attempt of one party to burden the other with the consequences of their business mistakes in an unfair way. In an investment case it could be disguising an illegitimate takeover of private property as an action in the public interest. And so on, and so forth.

Finding a credible theme that you can come back to an use in the course of your pleading is by no means easy. Ask yourself a question: what this particular case is all about? Once you have this big, yet accurate picture, it will give both you and the arbitrators judging your performance a sense of meaning and direction.

  1. Draw a map of your pleading with clear borders  

It is easy, is it not? Well, maybe if you stick to the regular ‘introduction – arguments – conclusions’ scheme. To make sure your pleading maintains good flow, you have to move beyond it. Arbitrators or judges need to know at all times at which point of the pleading you all are.

To lay foundation of clarity, you have to begin with a good intro. A perfect introduction has to include a roadmap in which you briefly, but exhaustively explain what are your submission and in which order you will address them. E.g., the tribunal has to know that firstly, you will argue that it has jurisdiction over the dispute and secondly, that interim measures requested by respondent lack merit and should not be granted. Signpost when you move to our first submission and when you conclude it to move to the next one. If you jump straight to the argument and fail to signal that you finish it to discuss another one you almost guarantee that the judges will get lost at least for a second (human attention span is really limited and not all moot arbitrators have mastered mindfulness, I guarantee).

The same logic should be applied to the core of each of your submissions. Each of them will be likely supported by a couple of arguments which will require discussing them in a structured way. Again, before you go deeper, and to build on the previous example, stress at the very beginning that the tribunal has jurisdiction, since the parties signed a valid arbitration clause and your client followed al the pre-arbitral steps instead of jumping straight to countering your opponent’s arguments.

It is your responsibility to make sure that at all times the tribunal knows where your story is going. In lengthy arguments that you will be making this sense of clarity will be highly appreciated.

  1. Use connectors and linkers to keep your speech smooth

Without connections you are doomed – your pleading will be disjointed, confusing and unpersuasive. It is not enough to outline what you will discuss and signpost when you move from one issue to another. To be a great storyteller, you need to go further, up to the level of a single sentence.

Sentence connectors and phrase linkers give flow to your argument, skeleton for your syllogistic thinking when you are making a legal argument and contrast when you need to compare and distinguish. Without using the words ‘therefore’, ‘hence’, ‘consequently’ it will be difficult to demonstrate you are reaching a conclusion. Without ‘however’, ‘nevertheless’ or ‘likewise’, a positive or negative inference you draw will not resonate well. If you fail to connect different parts of your pleading this way you hurt your story.

  1. Do not get distracted or carried away

In a perfect world when you plead and you feel the flow nobody should feel like interrupting you. The best pleaders simply leave no door (or window) open for questions or interruptions because their argument is so smooth: one thing leads logically to another without the need for any clarifications. Even when you are in the zone, you may still get questions. Do not lose your focus then. Answer them like an expert and return to your structure and sequence of arguments you were planning to follow. They should be at worst a minor disruption, no a reason for you to abandon the story you were recounting altogether.

  1. Check if the tribunal follows

It is necessary to make sure that you and the tribunal are on the same page all the time. You can see it from their body language, eye contact and reactions. If you see that arbitrators did not understand a particular point you were making, it is fine to rephrase is, support it with a real-life example or use an alternative you have up your sleeve. When you notice their attention disappearing, you can gently wake them up by beginning he next phrase with a direct exclamation, like – ‘members of the tribunal’. When you realize they cannot find a page in the record, wait for them. The point of observing the tribunal is vital, since once the connection you have is severed for some reasons, it takes precious seconds to re-establish it – and it always might be the precious seconds when your key argument is made.

A transition from a pleading which is just an orderly presentation of arguments to a story that every judge would enjoy is a difficult process. However, I hope that now, with a mindset of a storyteller, you will at least try!

All the best,

Marek

 

 

FDI Moot – from arbitrator’s perspective

It has been almost a month since the FDI Moot 2017 finished and it took me a while to reflect on it. This year for the first time I had the pleasure to arbitrate some of the elimination rounds during the Global Oral Finals. Apart from stressing again how impressed I was with performance of the teams I judged, I would like to share a few observations from arbitrator’s perspective.

If you can sit in the panels during moots or pre-moots, I strongly recommend you jumped at the opportunity. In my case, it complemented my experience as a participant and as a coach very well. In many areas it confirmed that the advice given here is accurate, in others – added entirely new value.

Remember that each arbitrator is different, though. What I liked and disliked while judging teams might not necessarily overlap with others’ opinions. However, I have the feeling that many arbitrators share my impressions.

Here are 9 things I learnt as an arbitrator this year:

1. Scoring teams is not an easy job

First and foremost,  I have to stress that (contrary to what you might believe) – deciding how many points each team and advocate should receive is by no means easy.  You really do not have a lot of time to make up your mind and there are many factors you have to take into account. In every single one out of four rounds that I arbitrated both claimant and respondent were on a very similar level. All advocates had their strengths and weaknesses. As an arbitrator, you have to weight it against the moot’s criteria and you want to do justice not only to the teams from the particular round you are assessing, but also to the other mooties you have seen. Taking into account the fact that you usually have little time after the round ends to give points, scoring is a challenge – especially if you wish to reflect more on the teams’ performance and rely more on your analysis than your first impressions.

2. Speak slowly – for the sake of clarity

I keep repeating it time and again: right pace is crucial! While you plead, there is no need to rush. Your pleading has to be above all clear. It is difficult to achieve when you are shooting arguments at the tribunal like a machine gun. Bear in mind that moot court tribunals are composed of people from very different backgrounds who usually are not native English speakers, so accents and differences in the way we articulate our thoughts come into play. A calm pleading makes it possible for you to put emphasis on the most essential arguments, hide the stress that you most certainly feel and ensures that you never forget about the second most important thing, which is to…

3. Be adamant, since wavering destroys credibility

Whether you find yourself stuck under a barrage of questions, surprised by your opponent’s argument or forced to modify the structure of your pleading,  never let the panel know this is something you are uncomfortable with. Inside, you might be crumbling, but as long as the panel does not notice, they will believe you are self-confident and have prepared for everything. Do not surrender when someone criticizes your position or argues with you. An immediate retreat destroys your credibility. Put forward arguments that you can defend and swap them for alternatives only in case when arbitrators are not buying them.

4. Embrace questions to become conversational

To build up on the point on questions – do not run from them. Embrace them as an opportunity to score better points.  As a rather active arbitrator who enjoyed having an in-depth conversation about the case with the pleading teams, I always found it disappointing when someone tried to evade my questions. The best pleadings that I had where when I could freely discuss the most interesting aspects of the problem with both teams. In order for that to happen, you must not pretend you are answering, but go straight to the point.

5. Do not be petty, since it does not pay off

Be courteous, but firm with regard to your opponents. It is OK and even desirable to point out where they erred in their argument, since it boosts your position and demonstrates that you listened to them. However, picking on minor or purely procedural points just does not make a good impression. If your opposing counsels made some mistakes there, the tribunal will notice. If you attempt to improve your position by exaggerating, it might backfire.

6. Colour the facts of a moot case to be remembered

If you have a narrative and a bunch of elegant phrases that spark arbitrators’ imagination, you are in a very good position to make your pleading memorable and more likely to impress the tribunal. As an arbitrator I was always eager to reward counsels who were able to catch my attention by speaking about the case in vivid language. Do not get me wrong – it is not about baroque metaphors or surprising comparisons. What I found particularly effective were short, ‘catchy’ phrases. For example, it is far more interesting to hear that the other party ‘conveniently omitted’  an unfavorable fact from the case rather than that they simply ‘did not say’ something.

7. It is OK to disagree – if you have arguments to back it up

Do not be afraid to challenge a point made by an arbitrator if you have grounds for it. It is fine to ‘respectfully disagree’ with a member of the panel if you can substantiate it. As all people, arbitrators might be wrong about something and it is your job to make sure they learn the truth. If you give in, you leave room for doubts and miss an opportunity to make an impression that you are indeed a knowledgeable counsel.

8. While responding, be responsive

On many occasions I noticed that moot court teams are heavy reliant on the scenarios they wrote before the pleading. It is OK – you must be in control and your strongest arguments should be voiced. However, if you respond to the objections to jurisdictions or claims made on the merits of the case, you have to accept that it is the opposing party that chooses the field in which you will be playing . If you fail to respond to their arguments, you become irrelevant, which is far worse than being wrong. Do not count on the fact that arbitrators might not notice – they certainly will. Not all of them will bother to remind you that you should counter what the other party alleges, though. When I arbitrated I did it, but I considered it a failure on the part of the pleader if I had to force him or her to do the job.

I am not saying that you should refrain from bringing additional content. On the contrary! But if you wish to argue something entirely different from you opponent, do explain in the first place why this particular argument is brought: maybe it is because the other party applied an incorrect standard and you believe it is essential to correct it? Or maybe their arguments on merits hold, but there are circumstances that can actually exonerate the party you represent that they never addressed? Think about it.

9. Make sure that both pleaders are equally well-prepared

This is a piece of advice for coaches, rather than mooties, but since decisions who should plead in the final rounds are usually taken by the entire team, it is a good place to bring it up. From the teams I observed and the results I have seen it seems that teams that have only one excellent pleader are not necessarily in a good position to achieve outstanding results. The problem I see from time to time is that one person whose performance is perfect is able not only to eclipse the opponents, but also his or her co-counsel. It may backfire, since the teams’ scores are usually based on performance of both advocates. Arbitrators tend to compare all four speakers and figure out who was the best and to what extend – so I have seen teams losing matches in spite of the fact they had the best pleader. Put a lot of effort into preparing you pleaders so that there is no glaring difference between their performance. If they are roughly on the same level, you are in a far better position to succeed.

I do hope it will all help you perform better in the FDI Moot. And beyond!

Best wishes,

Marek

Moot Court Advocacy Series – Season III: ‘Teamwork, Episode V: ‘Sources’

“What is your authority on that?” is probably one of the most oft-asked questions in the legal world. You are likely to hear it even more often during moot courts, since you usually have to deal with controversial issues and your knowledge is ruthlessly tested. No matter how witty your arguments are, it is always necessary to support them with similar views of scholars and commentators, as well as favourable case law. Even when you know you are right, your position looks far weaker if it is not standing, as Isaac Newton once put it, “on the shoulders of giants”.

In consequence, both in the written and the oral phase of the competition you have to do your research and find a variety of books, articles, publications and, most importantly, cases to back your reasoning.

But the question remains – where to get them?

  1. Library

Maybe you find it surprising that I put this old-fashioned institution first. However, from my experience plenty of students have no idea of the wealth of knowledge and readily-available sources that university libraries offer. Of course, it depends on the size and profile of your law school, but I still encourage everyone to run a couple of searches there and track as many relevant and serious positions to cite as possible. What is more, contrary to the widespread opinion, the internet really does not contain everything. Professional and high-quality sources that you should use are often hidden behind a (thick) paywall. Instead of giving up, relying on someone else’s citations or inaccurate (and probably illegal) scans it is always better to look for full texts in the place where they are most likely lying. It might be easier than you think, since many universities have access to…

  1. Legal databases

Specialized online databases that contain pieces of legislation, publications and case law are definitely the most convenient and probably the most effective way of doing research. It is partly due to the fact that people and companies managing them do a huge chunk of the necessary work for you. The databases are usually well optimized and direct you quickly to relevant bits of information by connecting legislation, commentaries and cases, since professional lawyer who usually use them have no time to spare on inefficient systems. The problem is that such databases are almost never available for free and you need to purchase expensive subscriptions in order to access them. Luckily, there are some solutions to this problem. At times universities provide their students with access codes or dedicated library accounts, but forget to mention it anywhere. Check it and you might find yourself pleasantly surprised! Some moot court organizers manage to negotiate temporary access for the teams and this can be your way in as well. Some members of your team members might be doing internships in law firm during the moot and get access to valuable research opportunities this way. Or maybe there is a law firm that could share their user account with you in exchange for becoming the team’s partner and sponsor? Either way, I strongly recommend trying out these tools.

  1. Researchers’ websites

There are some research-sharing platforms like Academia.edu where people upload their articles and research so that others can access it and use for the purpose of their project. If you are stuck or need inspiration they might be the way to go. People who publish there usually belong to the younger generations of academics. Although their names may lack the gravity of some of the better-known people from the industry, the articles that were accepted by well-known, peer-reviewed papers are certainly a viable source of information and insights.

  1. Other papers and cases you read

A good academic, just as a good counsel, researches a problem thoroughly before drafting a skeleton of an article. That is why an average academic publication will contain plenty of useful citations. Not only scholars do it: case law often contains many references, since judges and arbitrator prefer to support their ruling with relevant authorities and proof that other courts reasoned just as they did. It means that while searching for solutions to a particular problem you can quickly gather many authorities only looking at someone else’s citations. You must not copy them into your piece without previously having read them, of course. But taking notes and then going through what you could find in the available sources can save you a lot of time and painstaking analysis of not necessarily relevant, yet lengthy materials.

  1. Google

…or any other search engine, so that no one accuses me of product placement. I am pretty convinced that it is the very first tool most people use when faced with a moot court problem. It is for good reasons: going deep into what internet in general has to offer can bring surprisingly good results. Many publications make it to the internet one way or another and (bearing in mind copyright law, of course) you are a click away from them. However, they will be by no means sufficient or exhaustive, so do not neglect other sources that you can use.

Good hunting for authorities,

Marek

Moot Court Advocacy Series – Season III: ‘Teamwork’, Episode I: ‘When You Plead’

Welcome to the first episode of season III of the Moot Court advocacy series! We have already covered many aspects of both written and oral advocacy. What is common for both of them is the need to cooperate effectively with your teammates – and this is an entirely different skill to acquire. So, are you ready to make the first step?

I remember it as if it was yesterday – a huge hall full of audience watching the final pleading of the moot court competition I participated in. That would be better for me than a football match, if only I were not pleading… The team we faced was excellent and unlike me and my co-counsel, spoke native English. As we anticipated, the counsel from the opposing team was found to be the best of us four in the final pleading. What we did not anticipate was that the arbitrators decided that our team was the winner. Why? With hindsight, I think it was exactly for that reason: instead of being two good advocates pleading next to each other me and my co-counsel formed a superior team together.

Moot courts are fun because you do not do them alone. As I have already mentioned with regard to the written memorials, teamwork is essential for successful performance (not to mention enjoying the moot experience!). Firstly, you prepare your written submissions as a team. Then, you plead in front of the judges as a team. Making sure you are always there for each other and learning how to show the judges your cooperation is indispensable for success.

Follow this advice if you wish to learn how to leverage teamwork to win!

  1. Learn how to work together

Mooting is often compared to a team sport. Just like in football or volleyball, you need to spend sufficient time training with each other to learn how to act as a team. For the purpose of an oral pleading you usually have to learn how to work with just one person – your co-counsel. The more time you send pleading with each other the better. Initially you will be only ale to react to what is going on in the courtroom and react to your co-counsels words. After more and more time spent pleading together you might literally start reading your co-counsels mind: opening the record in response to the panel’s questions even before he or she starts answering, giving unnoticeable signals that only you will understand, all in al – being a true team. And that is magic which can win you your moot.

  1. Always be there for each other

Remember what I mentioned at the very beginning about being two counsels just pleading next to each other and being a team? The most important thing you need to do to undergo this transformation is awareness that your co-counsel needs you during the entire pleading – and that you need him or her as well. You have to stay alert and focus on what is going on. Firstly, do the time keeping for your co-counsel (like I described it here). Secondly, be ready to open the record at the right page when needed. Thirdly, if you see you co-counsel is in trouble, try to help if you can – in most of the competitions it is perfectly fine to write down a short hint on the piece of paper that should be lying between you two. Fourthly, listen to your opponents’ pleadings and pay attention to everything that can help your co-counsel’s case – inconsistencies, misstatements, and errors in fact or in law. Fifthly, refill the glass, so that there is always enough water. Lastly, just be supportive! It is much easier to survive a stressful experience that a moot court pleading undoubtedly is when you have someone by your side.

  1. Behave appropriately

During a pleading the judges will be more focused on the counsel who is speaking, but it does not mean the other one can lie back. When it is not your turn to plead, you need to demonstrate that you are paying attention. Maintain eye contact with the tribunal and a calm face expression. Sit straight, just as if you were pleading  (if you are sitting closer to the tribunal, make sure you lean back a little to make sure all the arbitrators can see your co-counsel well). Do not tap, play with a pen or do anything distracting in general. Do the timekeeping and other activities that are supposed to help your co-counsel in a way which makes them impossible to notice. At the end of the day – it is your co-counsel who has the floor and if something diverts the judges attention from that person elsewhere, his or hers persuasiveness suffers.

In conclusion, no matter how obvious it might seem, being a good co-counsel proves to be quite challenging during the demanding and stressful of pleading. However, I am convinced that if you bear the aforementioned advice in mind you will not fail!

All the best,

Marek

Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode X: ‘Handling Questions Like an Expert’

I often underline that pleadings are not recitations of previously memorized speeches. One of the reasons is that judges have the right to interrupt you and ask questions. What is more, the way you deal with them usually makes a huge difference for the overall result. On one hand, clear, direct, witty answers will make your pleading stand out  and score you many more points than a perfectly delivered, yet bland speech. On the other, bad answers can ruin you and leave the judges with an impression that you just learnt everything by heart and lack knowledge and skill to engage in a meaningful discussion about the case.

The number, type and difficulty of questions will vary significantly. You might get very easy, basic questions regarding facts of the case or applicable laws aimed at testing if you have done your homework. Hopefully, you will be also asked plenty of questions regarding your arguments and reasoning. Furthermore, some arbitrators are interested in broader, policy-related issues or ‘what-if’ scenarios related to the case – you have to be able to address them as well. Sounds intimidating? It should not, since you can prepare for it.

Here are seven rules you should follow if you want questions to be a pleasure, not a nuisance!

  1. Questions are an opportunity – not a curse

Your approach really matters and it is far easier to plead well if it is positive, not hostile. Arbitrators and judges (or at least – their vast majority) do not ask questions to humiliate you, prove that they know the case or the law better or find a reason to give you less points than you deserve. They do so, because they want to turn pleadings into something more than mere plays with defined roles and arguments. They are interested in confronting your ideas about complicated legal issues. They wish to test your reasoning and your ability to defend it. They want to make sure they understand your position clearly. All in all, their intention is to have an in-depth intellectual conversation about the case. Once you understand it, you will find holding the line even under barrage of questions much easier.

  1. Prepare, since fortune favours the ones who rehearse

Preparing for the oral part of the competition involves working on all aspects of your pleading. You need to think about the best structure, select the strongest arguments and work on the speech until it flows smoothly. An important part of these preparations should be dedicated to potential questions. While practising you should think about both obvious and less obvious questions and how to answer them. You will realize after a couple of training rounds (preferably with different people acting as judges) that there are questions which are asked almost always, or at least repeatedly. It is logical – every moot court case usually focuses on a limited number of controversial issues that give rise to a particular set of questions aimed at solving them. It means you can prepare the best possible answers long before you are asked anything by judges during the final oral rounds.

Firstly, make sure you know the basics – arbitrators which are less interested in the case or not so well versed into its details tend to ask most general questions (and it is embarrassing if you cannot answer them, no matter how legal analysis is). Learn the facts of the case and on which page of the record to find them in the bundle to quote them if necessary. You also need to know what is the applicable law and why it binds the tribunal. Secondly, think more broadly. The rest of questions will depend on the kind and complexity  of issues contained in the moot case. Brainstorm with your team. Invite people unfamiliar with the case who think out of the box and can surprise you with something unexpected. Ask more experienced lawyers for help to check what kind of issues spring to their mind when they hear your arguments and apply them to the case. The more questions you predict and find answers to this way, the better – you reduce the risk of being surprised and forced to come up with something in the matter of seconds during a pleading in the oral rounds.

  1. Give ‘yes/no’ answers

We all know that the legal world, due to its complexity, is plagued by the ‘it depends’ approach to almost every problem. Unfortunately, during a moot court pleading this  answer is off the table. You need to be clear what your position is – if you are not, how can you persuade judges that they should adopt it? In consequence, if you know the answer will be affirmative, just begin by saying ‘yes’. If you know your answer will be negative, just begin by saying ‘no’. It is easy when this ‘yes’ or ‘no’ supports your position. If it does not, immediately add the magic word ‘however’ and offer an explanation why an honest, yet unfavourable answer does not really affect your position. Never try to misstate or omit. It can confuse the judges and make your position seem unclear. In the worst case, the chances are high you will be caught and in consequence ruin your credibility. In your answer that follows focus on strengthening your position or demonstrating that, despite an unfavourable fact or law,  your argument still holds due to other, prevailing circumstances.

  1. Be brief

In the previous episode I mentioned how difficult it is to keep control over the passing time when you are asked a lot of questions. Their number is a factor you cannot influence. What you can do instead is controlling the time you spend answering them. Many people tend to provide lengthy explanations, especially when they are surprised by a question that they did not expect. It is a mistake – the more time you spend circling around an issue, the more blurry the picture becomes. Be succinct instead. Give the judges nothing more and nothing less than what they wished to hear from you and go back to your pleading. A correct, concise answer will also be better remembered by the panel than a mini-lecture with a lot of words and little content.

  1. Be relevant

It is easy to get distracted while answering. Arbitrators might contribute to it – some will ask you very abstract, hypothetical, ‘what-if’ questions. Since they are the ones who govern the pleading you must not dismiss these questions as irrelevant. However, you do not have the time to discuss matters only indirectly or partly related to your case. To avoid letting the discussion drift too far from your case do not be afraid to explain your position very shortly and then go back to the case immediately. You are a counsel: your performance should be focused around the case and real problems at hand, not theoretical  digressions.

  1. Answer without hesitation

A common mistake many mooties make is an attempt to delay answering to a question. You might be asked a question you simply do not know the answer to or a question which you know you will address later during the pleading. Unfortunately, when judges ask, it means they want to hear an answer immediately. You cannot ask them for a minute or two to think or dismiss the question by stating you will address it later during the pleading. If you are surprised with an unexpected question the only think that can save you is your brilliance and the overall level of preparation. To buy yourself  a few precious seconds you can take a sip of water before answering. Only in extreme circumstances, when you are completely stuck, some people recommend resorting to an ultimate answer: ‘Unfortunately, I am unable to answer this question now, but I will address this issue in a post-hearing brief’. The tribunal will know you had no idea what to say, but some judges should appreciate it more than awkward silence or embarrassing excuses.  However, if you know the question covers something you are going to mention later, just give the shortest answer possible and underline that it will be discussed in detail by you or your co-counsel later during the pleading. Sometimes a question like this might be actually a good opportunity to move forward. You can begin you answer by stating that ‘this question brings me to my next submission, which is…’ – and smoothly proceed to another argument.

  1. Ask for clarification if you misunderstand

It is way better to make sure that you and the panel are on the same page instead of wasting precious seconds of your pleading on explaining something the arbitrator are not interested in. It is perfectly fine to ask the arbitrator to repeat the question if you think you misheard it or to rephrase it if you are not sure what the member of the panel meant. Just remember to be courteous and focus, so that the second time you understand the question. It is very embarrassing for both the judges and the participants if they fail to communicate entirely and have to drop an issue…

I hope that now you will be able to take advantage of every single question you might be asked during your pleadings.

All the best,

Marek

Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode IX: ‘The Essentials of Time Management’

Time is money. I learnt it the hard way when my team competed in the VIS Moot. During the round of 32 we pleaded against another very good team. I imagine it must have been extremely difficult for the tribunal to decide who was better in terms of merits and advocacy skills. What they looked at instead was time management. Since the other team was slightly better at it, they won.

Both in real life and during a moot court you will have a limited amount of time for every part of the hearing. You must have full control over it or otherwise, you risk missing important points due to time constrains. That’s why in the last episode I mentioned that a stopwatch or a cell phone is indispensable on your desk for the purpose of timekeeping. But control over the time means much more than just watching how it runs out.

During a moot court you are given a very short amount of time (usually between 15 and 25 minutes per speaker) to present several arguments pertaining to two or three issues. Even though it sounds like eternity, many people do not make it in time, especially if they are asked a lot of questions. Tribunals do not tend to rudely interrupt and order counsels to finish when their time is up (though judges and arbitrators have the right to do it and some are very strict about it). They probably will not notice if you speak for additional ten or fifteen seconds. However, a thirty-second-long extension may already sound the alarm and force the panel to remind you that your time has elapsed. It is always an embarrassing sign that you lost control over your own pleading.

The consequences of bad time management vary. Minor mistakes probably will not hurt that much. However, most rules oblige the tribunal to penalize teams which go over the time they requested or were given by the tribunal. Sometimes in case you speak for too long arbitrators may decide to reduce the amount of time your co-counsel will have. Finally, when two very good teams compete, judges are often unable to decide who was the best based on slightly subjective criteria like persuasiveness of arguments or advocacy style. They might turn to something more measurable, namely, time management.

To have full control over your time and be rewarded, no penalized for it, follow these six rules:

  1. Create a system

To be able to control the time you need a clear, intuitive system. In my opinion the best way is to set up a timer on a phone (of course, after switching off sound and vibration entirely) and, depending on your preference, have it running either forwards (so that you can see how long you talk) or backwards (so that you can see how much time is left). If using phones is forbidden, use a regular stopwatch.

Some people decide to keep track of the time on their own. I strongly discourage it if you can count on your co-counsel’s help. If someone can take care of timekeeping, you can direct your attention elsewhere and be more focused on the tribunal and its questions. Not to mention you often score additional points for teamwork! Apart from a timer, you also need to choose a way of communicating to your co-counsel how much time is left. Colourful stickers, small cards with a number of minutes left written on them or a timesheet where your co-counsel can cross off a box representing e.g. two minutes of the pleading each time they pass will work just fine. Make sure it is visible enough for both speakers to be aware how much time they still have, but not too distracting both for the counsels and the tribunal.

  1. Always finish within your time limit

Once you have the necessary ‘infrastructure’ you become able to control the time.  And the first rule is: finish your pleading within the time you reserved. Not too soon and not too late. It is possible to achieve if you learn your arguments very well, analyze questions that they can provoke and then plead in a flexible way, taking into account what your tribunal is like.

Sometimes you will plead in front of a ‘cold bench’, a tribunal which asks almost no questions. In this case, it is up to you to maintain the pace of the pleading and select arguments. From my experience people tend to finish too early when confronted with a cold bench, since they are usually accustomed to judges who ask a fair amount of questions. Their uninterrupted pleading turns out to be too short, what may be considered a mistake. For sure, it is a wasted opportunity to add an additional interesting argument or two which are normally omitted due to judges’ questions.

A different situation occurs when you are in front of a ‘hot bench’ – a tribunal consisting of active judges who ask plenty of questions. Many mooties struggle to finish in time in these circumstances, because the panel interrupts them, takes over the pleadings and can even drift far away from the main issues. It is the counsels’ job to answer in a concise manner, make sure the discussion remains relevant to the case and choose when to move forward to another issue. However, regardless of everyone’s best efforts, you will often notice that the last issue in every pleading is omitted or addressed in a cursory way due to time constrains. That’s why it is useful to learn how to address every issue you plan to cover during your pleading in one or two minutes, so that you do not have to skip it or abandon it half-way through if you run out of time. Remember – there is no need to be stressed that you did not manage to elaborate on each and every argument. The panel cannot read your thoughts. They will never learn that you failed to make a point due to time constraints unless you let them know. If you omit something, they will simply assume that was your intention from the beginning and even appreciate that you chose to focus on the essentials.

In my opinion finishing your pleading exactly within the time that you initially requested is very professional and gives an impression you are perfectly prepared and organized. However, in the majority of moot courts it is perfectly fine to ask for additional time – you only have to learn how to do it properly. So…

  1. If you need more time, always ask for it

‘A I see my time is elapsing, may I ask for one additional minute to conclude my submission?’ is likely the most oft-heard question during moot courts. I believe that the best moment to ask it is when you see that you have 30-45 seconds left and already know that you will not be able to wrap up the point you are making or present another argument, critical for your success on a particular issue. You should never ask for additional time once your time has already elapsed, since it makes an impression you lack control over the pleading and it is far more likely the tribunal will deny your request. Moreover, always ask for a specific amount of time, usually one minute. Do not worry – if you ask for too much, they tribunal will just grant you less time. If you are asked a question shortly before your time elapses and you feel you will run out of it before you finish your answer it is usually a good idea to ask for additional time as well. You flag that you are aware of time constrains and avoid being penalized by a less attentive judge for exceeding your time limit due to the fact you had to answer a question.

  1. Once granted additional time, never extend it further

The additional minute or two you get is a gift from the tribunal – a gift you may not always receive. For this reason you should always finish your submission within the requested period. It is not only about being professional and in control of your own argumentation. Bottom line is, lengthy pleadings can disrupt the schedule of the competition, make arbitrators (and teams) arrive late to consecutive rounds and in general – make everyone unhappy. And making people unhappy has nothing to do with scoring high during a moot.

  1. If you exceed your time limit, just finish your last thought and rest your case

Every pleading is a stressful situation and not everyone is able to focus on more than one thing at the same time. You might simply not notice that your time has run out while you are in the middle of a heated debate with the tribunal or your co-counsel might fall asleep and notify you of it too late. There is no need to panic – the best thing you can do is finish. Forget about conclusions and elaborate closing statement. Just wrap up the argument you were making so that it makes sense and remark that since your time has elapsed, what you have just said concludes your submission. I believe that panels appreciate this respect for their time. Sometimes it happens while answering to the question asked by one of the judges. The rule is the same – just wrap up your answer and finish pleading.

  1. Never waste additional time for conclusions and repetitions

You ask for additional time in order to bring additional value: finish an argument that would not make sense if interrupted, make a final point or deliver a punch line that will be remembered. It is useless to request two additional minutes only to repeat an argument that you have already made or give a lengthy, general conclusion. Instead of stating again what you have just said, use the opportunity that comes with additional time to give the tribunal a puzzle piece they might be missing and ensure that they understand your final point.

If you follow these rules you should avoid being penalized for bad time management!

All the best,

Marek