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 III: ‘When You Write’

People often stay that each team is as good as its worst performing member. As much as I agree with this statement I still believe you can design your team and its activities in a way that reduces the risk you will fail to generate coherent, good results. It is especially necessary during the written stage of each moot court where four, six and sometimes even more people need to deliver their contribution. To make sure you are not held back as a team when you are drafting, think about it:

  1. Set out rules and schedule you will stick to

Let’s start with a brainy quote you are probably well familiar with: if one does not know to which port one is sailing, no wind is favorable. It is hard to say if ancient Romans applied this rule to during their moot courts, but you definitely should to yours. The thing you know for sure (and it does not depend on you) is the deadline for submitting the final version of your memorandum. It is up to you as a team to set dates for regular meetings, think of internal deadlines, agree what programmes and communication channels you use and reserve time for editing and reviewing. Bear in mind moot courts usually span over several months and everyone has other plans, obligations, exams, etc. that should be taken into account. Prepare an availability calendar so that you can remember when someone might be harder to reach. This way you will avoid plenty of stressful situations and increase the chances of finishing all smaller bits of work required for the bigger whole.

  1. Divide work and discuss progress regularly

An entire moot problem will be always too hard to swallow for a single person. As I have already underlined once you are a team so that you can divide the work between each other. Firstly, in case it is not stated in the moot problem, identify contentious issues you need to address. For the sake of everybody’s convenience most moot court cases contain either an order of the moot tribunal or terms of reference that enumerate which points should be addressed. Secondly, try to be smart about the way you divide issues: take into account how experienced or knowledgeable each member of the team is and what is most interesting for each of you. You are most often required to draft memos for both parties to the dispute and it is best if you do not swap issues – writing persuasively is more effective when you deeply understand arguments of both parties. Thirdly, each time you get stuck, feel that what you write overlaps with someone else’s part or even contradicts it – reach out for support from your teammates. In the written memorandum you can use arguments that are on average more complex and sophisticated than the ones appropriate for the oral argument, so they might be more difficult to grasp. The earlier you alert everyone of the issues you need to solve together, the better. And if you would like to learn why this regular and thorough reviewing helps, have a look here.

  1. Be honest

If something is not working – do not pretend it is. No matter if it is an argument in someone else’s part of the memo, the programme you are using or something else, the faster you flag the issue, the better. A healthy team is not an organization where constructive criticism is dismissed. Be ready to give it and take it on board.

  1. Be timely

Writing, reviewing and correcting is a time-consuming exercise (if you wonder why lawyers work long hours – that is at least part of the answer). Since the moot memorandum you are supposed to draft is a rather complex piece composed of many different, yet interdependent parts a delay in one of them means a setback for everyone. That is why being timely with your work matters so much. Additionally, if you have coaches, remember that more often than not the moot is an additional activity they undertake. Their professional lives might interfere and as a team you should give them sufficient time if you really want to give them an opportunity to produce productive input for you.

  1. Learn and make active use of technology

In the previous article in this series I gave a couple of examples  of IT tools that can really boost your performance as a team. You can easily find alternative programmes and apps in case you find that they are working better for you. I just strongly encourage you to move beyond e-mail, Facebook and other distracting social media:  they are not very well suited for an organized,  collaborative effort of preparing a good written memorandum.

All the best,

Marek

Moot Court Advocacy Series – Season III: ‘Teamwork’, Episode II: ‘Useful IT Tools’

My first moot court was an awesome adventure. But to be honest, I have one very bad memory… You know what it was? The never-ending flood of e-mails and other information from my teammates. I had to constantly cope with moot-related messages and files which all the time got mixed with my private communication, lost among different channels, misunderstood or overwritten. It was all very frustrating for the whole team struggling with the same problem. And the worst thing is – we could have avoided it by using better IT tools.

Despite the fact that nowadays we are more connected than ever before communication can become a real nuisance and an obstacle for effective teamwork. If you want your cooperation as a team to be smooth and efficient, it is crucial to agree on communication channels early on and stick to them.

At the same time, mooting is an intellectual sport. As in almost every discipline, the equipment that the players use matters. In this case, the equipment are programmes you decide to use for the purpose of the moot court. Unfortunately, many teams make a serious mistake at the very beginning by agreeing to use the channels they know and check regularly: their e-mail and Facebook. I strongly discourage you from using e-mail, Facebook groups or Messenger as your main platform for communication and sharing: these pieces of ‘equipment’ have proven highly inefficient for me and my teammates. Not only do they mix your moot related and private stuff – they simply lack the features you need to draft memorials together, gather research, discuss issues and keep track of your progress. Luckily, there is a wide range of free tools and programmes that perform much better.  Here comes my top five:

  1. MS Word – to draft

The reason why I mention this legal world’s workhorse might seems self-explanatory: it is probably the most widespread text editor in the world with plenty of features necessary for proper formatting of your memorandum. MS Word not only allows a skilled user to create a clear and structured memorandum, but its comments and track changes tools make reviewing process much easier. But the most important reason why I mention only one text editor is that you must as a team switch to just one programme. Using different, incompatible text editors will be a nightmare when you start reviewing and compiling, since some people might be unable or unwilling to use two editors at the same time. You can use online converters, of course, but they often corrupt files and formatting, causing unnecessary delays and unnecessary work unrelated to the merits of the competition.  If you want to avoid last-minute (and often irreparable) formatting issues half an hour before submission of the memorandum you should definitely use just one programme

  1. Slack – to talk

Slack is an online platform for teams which is supposed to structure and facilitate communication. And I have to admit – I absolutely love it! Since the first time I have used it I keep converting everyone I can to Slack. Why is it so awesome for moot court teams? There are several reasons. Firstly – it is free J Secondly, it works equally well on computers and smartphones. Thirdly, it has everything that e-mail, Messenger and other traditional tools lack. It allows to clearly define channels dedicated to specific tasks without losing the ‘big picture’ from sight, share files in a convenient way and easily go through conversations for thanks to its search tools. I remember that I was initially quite sceptical about it – who needs another app to monitor all the time? However, its usefulness bought me from the very first moment and I really cannot imagine coaching a moot court team without it.

If you would like to learn more about this programme and see it first-hand, you can visit its YouTube channel.

  1. Dropbox – to store and share files

Despite the fact that Slack lets you share files, you will for sure need a more organized online document library where you can store books and articles or exchange versions of the memorandum. Dropbox will be perfect – a free (in its basic version) online disc makes every file accessible whenever and wherever your team needs it without going through e-mails or carrying a computer around. It is very intuitive to use and thanks to it you can arrange your files neatly and search them with ease.

Alternatively, you can use Googledisc. However, it has two main drawback – not everyone has a Google account to use it and in my opinion it is far less convenient in terms files are displayed.

  1. Canva – to do graphics

You are not a Photoshop expert but need a poster or a cooperation offer for the purpose of the moot? Canva will definitely help!  This foolproof programme is fun to use and after some practise even a person without much experience or talent (like me) can create decent graphics by using it. As all the tools I have suggested so far it is free in its basic version and provides extensive guides for newbies.

  1. Cold Turkey – to fight distraction

It does not take a productivity guru to see that we work best if we can focus on our task. Unfortunately, getting things done in an undisrupted manner is becoming increasingly difficult. Procrastination and distractions caused by Facebook, Twitter, Snapchat, Instagram, YouTube and countless other websites and applications cost us hundreds of hours each week – and will surely eat away at the time you plan to dedicate to research or drafting. To prevent it, I recommend using Cold Turkey Blocker. This simple programme lets you cut yourself off the distracting websites or applications you might feel like using or checking when you are supposed to work. You just push a button and they get blocked for the amount of time you specify. And if you do not believe me that your performance is severely affected by these online distractions, install RescueTime first… This app measures the time you spend on different activities while contacted to the Internet. Believe me, you will be shocked when you find out what is the ratio of your “productive” time to “distracting” time! At least I was when I saw my statistics 😉

I hope these programmes will prove useful for you and help you team work efficiently. However, if you have used different IT tools and they worked for you, let me know in the comments what they are – everyone is probably curious to give them a try!

Best wishes,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode X: ‘The Importance of Reviewing’

Welcome to another part of the Written Advocacy Series! This time I will explain why it is essential to read, review and revise the memorandum multiple times before you file its final, refined version.

The process of drafting a memorandum should begin with preparing a skeleton argument. You should build each part of the memo around it. However, it is unlikely that the first version you produce will be good enough to submit it and get high scores. The same usually goes for the second and the third one. If you want to produce a written submission that can compete with the best, you will have to (as a team) put a lot of effort into continuous, thoughtful and critical revision of the draft.

The most effective way to ensure that your memorandum will be thoroughly read and amended is to begin drafting early enough before the deadline and establish a routine of drafting and revising. Nowadays it is easy with track changes and comment tools available in every text editor. In a perfect world each team member responsible for a particular part of the memorandum should produce its new version every week or two. These versions should incorporate comments and remarks from the team’s coaches and other team members who had reviewed it previously. Each time  a new version is produced this way, it should be read and commented by at least two different people.

This process, though time-consuming, ensures constant improvement of your written submission. By making this effort as a team you achieve the following:

  1. You correct all mistakes and typos

We are imperfect and so is the autocorrect. Moot court submission, often produced late at night by hard-working students, are prone to typos and unintentional ambiguities. However, judges will accept no excuses – you simply must not spoil your memo with poor spelling or grammar. It is far less likely such mistakes remain unnoticed if a group of people reads trough the draft memorandum a couple of times.

  1. You develop coherent style

Every single person has his or her own writing style: favourite expressions, structures, ways of introducing and concluding and other features. For instance, someone may love the word ‘hence’ and use it in every paragraph. If it is underrepresented elsewhere, it is more than obvious that a particular memorandum was written by a group of individuals rather than a team. You should avoid making such impression – incoherence and the need to quickly adapt to a new style is tiring for arbitrators, lowers persuasiveness and demonstrates you did not work as a team. On the other hand, a memorandum which seems to have been created by an individual (even though many people worked on it) should be rewarded with high scores.

  1. You make sure your arguments are clear and ‘flow’

As previously discussed, clarity is one of the most important features of your written submission. When you explain your position in a memorandum, you do it from a position of the one who knows it inside out. Because of it you may unintentionally be too abstract, fall victim to mental shortcuts, flood your reader with too much unfamiliar information to process at the same time – or on the contrary, omit what you consider crystal-clear, but your reader could use to understand the point you are making.

  1. You foster creative ideas

Every new review is a new perspective. All the team members can – and should – reflect on all issues addressed in the memorandum, challenge existing solutions and propose new ones. It is much more likely when they are continuously engaged in commenting and revising all parts of the memorandum.

  1. You remove internal contradictions

Moot court problems are complex and issues that you address will be likely dependent on one another to some extent. By reviewing arguments you ensure that they do not contradict or invalidate each other. It might be more difficult to spot when different parts are written parallelly  rather than in connection with each other.

  1. You prepare for the oral argument

Last but not least, by being pushed out of the comfort zone of our part of the memorandum, you are preparing yourself for a soft landing during preparations for the oral stage. During most of the moot courts all the team members draft, but only one or two is a speaker during the simulated hearings. Nevertheless, speakers have to be able to argument all the points, not only the ones they were responsible for at the written stage.

I hope that now, when you know the benefits, the time-consuming and arduous task of going through your teammates’ parts of the written submission (and implementing their remarks to what you draft) will be a least slightly less painful 🙂

Cheers,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode IX: ‘The Great Don’ts 2’

Hi everyone! Five ‘dont’s’ have been mentioned, we have five more to go! Let’s learn about common mistakes you should avoid while writing a moot court memo:

  1. Don not ruin the memo with typos and sloppy editing

One of the mistakes that is the easiest to avoid but makes a horrible impression if not eliminated is poor editing. A memo full of typos and other mistakes is harder to follow and is a sign of disrespect towards the readers. Make sure that in terms of its form, your written submission is impeccable!

  1. Do not argue substantive issues in footnotes

Some people have the tendency to supplement their argument with longer and shorter clarifications and explanation included in the footnote. I do not recommend it. Footnotes should only provide a reference to facts, cases o authorities you use to back your position. If you want to add something to the argument in it does not deserve to be in the main body in the text, it likely means it is simply unimportant.

  1. Do not overuse italics, bold, underline or capitalize

Italic, bold, underline, CAPITALIZE and these three combined TOOLS are very useful. They can effectively make sections of the text easier to distinguish. However, if used too often, the effect is quite the contrary: the memo starts to look ugly, is difficult to focus on and follow. How to find balance?

Firstly, often the rules of a particular moot specify it. They might state, for example, that you should use italics to quotes from cases and authorities or that headings should be made in bold. Always follow these requirements.

If you have few or no requirements, be moderate and consistent. It is common to use bold for headings, italics for quotes and names of the parties from the cases you cite and underline sub-headings. Sometimes the words “Claimant” and “Respondent” which refer to the parties of the moot court dispute are capitalized.  I would be reluctant to go further. In case of doubt, check some real-life or winning moot court memos.

For the sake of clarity: unless expressly stipulated by the rules, colours different than black (letters) and white (background) are forbidden.

  1. Do not be informal

Your written submission is an essential part of a formal judicial proceedings and its style should reflect it. Phrasal verbs, contractions, colloquial vocabulary and other features associated with purely informal language should be replaced with their neutral equivalents. Bear in mind not to become too solemn or formal, though. You risk losing simplicity and clarity that are  crucial for the success of your memo.

  1. Do not overuse acronyms

Acronym and abbreviations are often a must. In a moot you have a limit on the number of pages or words you can use. It is unwise to waste it by repeating several times a particularly long name of a party, an institution or an act of law. Making a list of abbreviations and inserting it next to the table of contents is usually a good idea.

Even if you create such list, when you use a particular name for the first time in the memo write its full version and the acronym you gave it in brackets next to it: (‘like this‘). It will give the readers an opportunity to learn the acronym even without resorting to the list.

If possible, look for equivalents that are intuitive. For example, the Articles on Responsibility of States for Internationally Wrongful Acts that you will likely invoke in cases involving states are a perfect candidate for an acronym. However, it is much better to shorten them to ‘ILC Articles’ (what should be understood by pretty much everyone in the context of states’ responsibility) instead of bizarre ‘ARSIWA’, hardly familiar to anyone.

In any event, if you can avoid using an acronym, stick to the original name. If you flood your readers with a long list of obscure abbreviations, they may find your written submission hard to follow.

Cheers,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode VIII: ‘The Great Don’ts’

Hello! So far, we have discussed many ‘dos’. But a good written submission is not only about doing things right – it also about not making mistakes that can overshadow what you did well. Avoid the following ‘don’ts’ and your written submission is far more likely to receive high scores:

  1. Do not misstate

Never lie or misstate the facts or the law. If you get caught – your credibility is in ruins. If you are dishonest about one point, can judges or arbitrators trust such you with other arguments? I believe that an outright lie hardly ever is a case: it is too easy to track, so nobody thinks it is a good idea. I would rather be more careful with selective quoting that may be perceive as a manipulation. If you omit or cut too much you can distort what your source really meant.

  1. Do not be an a… appalling person

A legal dispute is an intellectual exercise , not a bar brawl. No matter how much wrong the other party did to the client you represent, you must remain respectful.  Never insult the other party or make sweeping statements about them which lack confirmation in the facts of the case. Do not be ironic or overconfident.  It does not mean you cannot attack weak arguments of the other party – actually, it is your job to prove that they are wrong and you are right. But you must always remain courteous and do it without insulting or humiliating them.

  1. Do not stray from your argument

When you are arguing you case, argue your case. Every remark or digression that is not fully relevant to the argument distracts your reader. At best, it is only perceived as irrelevant and immediately forgotten, i the worst case – is a distraction that undermines your persuasiveness. A written submission is not a place where you have the freedom to roam freely between issues and points of view and controversies among scholars. Just make your point clearly, support it with the best arguments you have and move on to another.

  1. Do not get personal

Your written submission is an official position of your client in the proceedings. Neither ‘I’, nor ‘we’ interest tribunals. Do not confuse the judges and arbitrators with sentences indicating that you support a particular position as a counsel without indicating that it is also Claimant’s or Respndent’s point of view.

  1. Do not stick to schemes you know from national legal orders

Unless you take part in a national moot court with people from the very same jurisdiction do not rely too much on traditional schemes or ideas you derive from  your home jurisdiction. It might be the way you structure your arguments, language register, practically – almost every aspect of legal writing. In the melting pot of international dispute resolution that moot courts frequently try to recreate a new system is being constantly shaped. Adhere to these international standards to avoid controversy.

These are not all the ‘don’ts’ that should be avoided. In the next post we will have a look at five more. However, getting rid of what we have already covered should save you a lot of points!

Cheers,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode VII: ‘The Great Dos 2’

Hi everyone! Today we further explore the features of your written submission that should be included and made visible. Ready, steady, go!

  1. Make it interesting

A written submission is not (and should not be) a novel. However, it does not mean it should bore the reader to death. There is a couple of tricks you can use to make your memorandum more compelling and, as a result, more convincing.

a) Avoid repetition

Readers of your memorandum should be constantly provided with new circumstances and reasoning that support your case. You have few words to use, they have little time to read. Thus, on their path through your memo they should feel they are constantly exploring new aspects of the case. What happens if they are not? Firstly, you waste their time going back to issues that have been already explained. Secondly, your bore them and encourage to skip entire paragraphs. Lastly, you become less persuasive, since constant repetitions signal that you lack arguments. In consequence, if you feel like adding “as explained above” or “as already mentioned” all the time it means something is wrong with the structure of your argument or your memorandum.

b) Vary phrase length

Using phrases of different length can create dynamism and reader-friendly pace. Mixing short and long phrases will naturally make your text flow. And obviously, a piece that is easy to digest will be more persuasive. Just remember to keep sentences reasonably short and not too complex (between two- and three-part sentences should work) and use the really short and simple ones to underline your position, key arguments or crucial facts.

c) Think of ‘fancy phrases’

The line between being too abstract or flamboyant in terms of style and writing a captivating, diverse memorandum that turns the case into a compelling story is thin. However, it is absolutely worth exploring. Balancing between the ordinary or dull and the colourful or gripping takes practice and might be especially difficult for non-natives. To look for inspiration, read a couple of real-life memoranda, for example from the sources mentioned here. You might find sentences and analogies that can deliver a real punch in your written submission Make active use of dictionaries, look for synonyms and try to enrich your style. An elegantly expressed thought or argument will resonate better with arbitrators.

  1. Remain coherent

Coherence is an important feature that translates into persuasiveness and credibility. You should not argue contrary approaches towards an issue unless you have strong grounds to explain the difference in circumstances that justifies it. For example, it is evidently incoherent to argue for the purpose of your first submission that previous judicial decisions have precedent value and the tribunal must not take them into account and all of a sudden, for the purpose of another point, that they are entirely irrelevant and should be disregarded. The risk of appearance of such inconsistencies depends on the case you are dealing with. However, always check how one line of reasoning impact the rest of your arguments. You are making your opponents a huge favour if you invalidate your own position!

  1. Cite your facts, your law, your cases and your authorities

Remember the part about the need to do quality research? Well, here it comes! Your argumentation has to be supported by a steady flow of facts from the record, as well as cases and authorities that support your argument. Although you do not need to provide a footnote for every statement you make, but key facts you invoke should be mentioned so that inquisitive arbitrators can immediately go back to the case and see it with their own eyes. Simultaneously, cite cases and authorities that support your reasoning or position. Usually, unless you have a particularly juicy quote, a simple footnote pointing to your source and paragraph or page is enough. Remember to be reasonable about the way you use them – there’s no point in arguing that a principle is ‘widely accepted’ in case you only have a case or two that back this statement.

Hope these ‘dos’ will help you produce a memorandum that has all the necessary features to receive high scores. In the next episodes we will look at ‘dont’s’ – everything that should be eliminated from your written submission in order not to spoil the good impression you make with the dos!

All the best,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode VI: ‘The Great Dos’

Hi everyone! This is the Written Advocacy Series. The last time we learnt how to structure each and every argument you make in a memorandum. However, persuading is not only about the sequence. To really make a point, remember to:

1. KISS the written submission

KISS stands for ‘Keep It Simple, Stupid’. While solving a moot court case you will likely face complex issues. They will force you to create nuanced justifications for you positions based on more than a single provision or fact.  But the bottom line is, no misunderstood argument can persuade.  No matter how smart the solution you came up with is, if you fail to convey it the written submission will not achieve its goal. The easiest way to lower this risk is to keep things simple and east to digest for the reader. Pay special attention to:

a) Language – avoid Latin and non-English expression (even if some of them are commonly used in your jurisdiction). Skip idiomatic expressions and proverbs (they are usually known only to native speakers). Replace jargon, archaisms and sophisticated words with their more well-known synonyms (it is embarrassing for readers when they have to read a memorandum with a dictionary next to them).

b) Grammar – avoid complex conditionals and tenses. Get rid of passive voice whenever possible. If you can express something in plain English, do it.

c) Syntax – avoid sentences that are too long and complex. If an entire paragraph is grammatically a single phrase, then it cannot be easy to understand. Build affirmative, not negative sentences whenever possible. Make sure that phrases you draft are not ambiguous and that each part and word refers to what you intended.

2. Make it clear

The ‘KISS’ rule is aimed at achieving an important goal: clarity. Your written submission should not anything that blurs the picture no matter how eloquent or sophisticated it might be. Clarity is achieved when your readers think only about merits of your argument and not the argument itself.  If you need to read a part of a written submission twice before you understand it, then it is not clear enough. While reading, if you cannot recall what was two sentences ago, then it is not clear enough.

An oft-cited and very effective way to check if your written submission is clear it to give it to a non-lawyer unfamiliar with the case. When your grandmother, flatmate from a technical university or friend from yoga classes is able to read through the submission and afterwards explain what was the problem and your solution to it, then you have done your job. If these people can get it, arbitrators can as well.

To achieve greater clarity, you should also take into account:

a) Redundancy – eliminate everything that is not essential to substantiate you position. Superfluous arguments and facts cover and weaken these that are crucial. Once something is established, there is no need to ‘overkill’ the issue by providing ten more minor points in favour of it.

b) Quoting – skip length quotes from the problem, cases or authorities. They distract the reader and usually bring little value. Carefully select the sentences that are relevant.

c) Give examples and draw analogies – when dealing with a particularly complex issue, it is useful to draw an analogy or think of a real-life situation that could make an abstract concept more tangible. I would not recommend elaborate metaphors (they can backfire or be misunderstood). Just find a simpler scenario and explain why it reflects well the problem you are trying to explain.

3. Appeal to equity and justice when you can

Solving a dispute is not only about legal technicalities and compliance with requirements. As human being, we all have deeply ingrained ideas of justice, fairness and equity. Being truly persuasive in your argument requires going beyond mere analysis of law and facts. You will achieve more if you demonstrate that deciding in your favour will be in line with arbitrators’ and society’s sense of what is just and fair (or at least that siding with your opponent will be inequitable). To make such arguments, look broadly at the case: maybe the parties differ significantly and the problem is about the big one trying to crash the small one? Maybe there are some truly important public interests at stake that should not be overlooked? Maybe a seemingly insignificant request turns out to be a pebble that can send ripples all over the system and bring instability or damage? Maybe the other party acted inconsistently or tires to benefit from its own wrongdoing? Of course, these arguments cannot replace compelling and fact-based legal analysis of the case. Nevertheless, they are a powerful device you should use.

I hope from now on you will be able to include all these dos in your written submission. A good memorandum is not only about doing things right, though – it is also about not doing things wrong. That’s why in the next episode in the series we will look at the don’ts. Stay tuned!

Cheers,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode V: ‘Making an Argument’

Hello! This is another post from the Written Advocacy Series. Time to have a look at the most basic, yet often overlooked aspect of writing a memorandum: the correct way of presenting an argument. Making a substantiated claim is difficult. Unless, of course, you bear in mind these three simple rules.

  1. BARAC, IRAC, CRAC and more

To understand your argument judges and arbitrators need to know: what you request, what are the legal grounds for your request and what circumstances make your request justified. Once they have it, they will rule in your favour. These three ingredients are found in a recipe for a correct argument, which is called BARAC. BARAC is a framework for making an argument and stands for:

Bold Assertion: claim, request, what you want the court or tribunal to confirm;

Rule: the legal norm applicable in the case;

Application: explanation how the test or threshold derived from the norm is met;

Conclusion: summary of the whole reasoning and repetition of the Bold Assertion.

If you googled it, you would find dozens of other abbreviations similar to BARAC. IRAC, CRAC, ILAC… The idea is always the same: to clearly say what you at the beginning and then justify in an orderly manner.

Do you need some practice? Let’s have a look at an example.

Imagine a situation when you are suing a company who did not comply with the contract it signed with your client: it delivered goods of different shape and colour than agreed ad now refuses to return payment. How will BARAC work in this relatively simple case:

– Bold Assertion: Respondent breached Art. 5 of the contract;

– Rule: a contract is the law between the parties and it stipulated that Respondent should deliver 50 round red items;

– Application: in the case at hand, Respondent delivered 50 blue triangle items;

– Conclusion: Respondent failed to comply with its obligations, which amounts to a breach of contract.

As simple as may it seems, these elegant reasonings become distorted and twisted in more complex cases. Be wary of it and always  keep your writing on the BARAC track. Hardly ever during a moot court you will find yourself in such a straightforward situation. However, you must find a way to fit even the most difficult, complex arguments into this framework – it is simply the most effective.

  1. Build a 3-layer high pyramid

As we discussed in the previous post, you should limit the number of “layers” when you structure your memo. The “pyramid” of arguments you build to substantiate each claim allows to clearly distinguish between main points and subsidiary points. Adding too many points, though tempting, might give the opposite effect: the reader gets lost and forgets how subsidiary points are related to each other. Beyond the 3-layer threshold you increase risk that the memorandum becomes too fragmented to follow easily. Ideally, your main arguments should preserve simple outline and look e.g. like this:

I. Respondent breached Art. 5 of the contract

A. Respondent delivered goods which failed to comply with contractual requirement

1. The goods were of different colour than stipulated in the contract

2. The goods had shape different than stipulated in the contract

Unless it is indispensable (though sometimes it might be the case) do not go further. Moot issues are usually simple enough to fit them within such form.

  1. Imagine you write the award for the tribunal

The most general and universal guideline for formulating the argument in my opinion derives from the goal each argument is supposed to achieve: swaying judges or arbitrators in you favour. If your reasoning is so strong and your reasoning so good that judges or arbitrators feel like copy-pasting it to the final award, then you achieved the desired result. At the end of the day, the argument you are making is essentially what you would like the tribunal to decide. Write and revise the memorandum as if it was a final decision you would gladly sign and take responsibility for.

Remember to follow these rules and the chances your argument will be understood are high. However, how to make it too persuasive for the arbitrators to reject? We will focus on it in the upcoming posts from the Written Advocacy Series.

Cheers,

Marek

Moot Court Advocacy Series – Season I: ‘Written Advocacy’, Episode IV: ‘Structure of Your Memorandum’

Hi! This is the fourth post from the Written Advocacy Series and we are going more and more into details. In this post we will look at your written submission as a whole and figure out how to structure it in its entirety to be clear, neat and, as they say in French – comme il faut 🙂

  1. Follow the moot rules

The most important point when thinking if the memo’s form, layout and structure are the rules of a particular moot court you take part in. To put it simply: do include what the rules require you to include and do not include what the rules forbid you to include. In the former case, apart from the main body of submission with argumentation, you are usually required to provide table of cases and authorities and a front page with information used to identify your team. In the latter case, you might for instance be obliged not to disclose you affiliation to a particular university. If you have any doubts, remember that you can compare your draft memorandum to these submitted in previous editions. Unless the rules changed, they would be a reliable source of good practices.

  1. Consider including the following parts

Irrespective of the rules, most of the written submissions prepared in moot court competitions contain the following parts:

a) Front page

This is the very first page the people scoring you written submission will see. The rules usually provide what it should contain. The most important issue here is whether to reveal your affiliation: in some moot courts it is known for everyone which university you represent, in others you must not inform anyone about it and you are given an alias. Most likely, the front page will mention names of the parties and the institution administering the proceedings, as well as information which party submits it. Apart from that, make sure the front page is impeccable in terms of its layout, pleasant to look at and coherent. ‘Don’t judge a written submission by its cover’ rule does not apply here.

b) Table of contents

A part which is often overlooked, but crucial for navigating though your memorandum. It must provide clear information on which page each part of the written submission ends and begins. Also, it should make a clear distinction between different tiers of argumentation. I strongly discourage doing it manually – last minute mistakes are almost certain in that case. Learn how to generate it automatically and get done when you know no further amendments to the memorandum beyond correcting typos will be made.

c) Statement of facts

This part is usually not obligatory. However, I do recommend including it. Statement of facts should be 1-, maybe 1,5-page-long recapitulation of the key facts from the record aimed at bringing out circumstances of the case that support the position of the party that is making the submission. Do not get me wrong – you are not supposed to lie or manipulate here. In most moot problems you will be able to identify fact patterns and the way of presenting them that will make judges or arbitrators more likely to sympathize with either claimant or respondent.

d) Summary of arguments

Again, although not obligatory, this part can  help you receive high scores. Without using a single unnecessary word, you should present your key arguments regarding all issues. This will help the person scoring your memo understand what the problem is about and pick the most interesting one or the one she or he is most familiar with and able to assess properly. Be concise – depending on competition statement of facts and summary of arguments counted together should not take more than 3 pages.

e) Main argument

A crucial part of your memorandum where you argue in favour of your client’s position. The rules for structuring particular arguments are complex and important enough to dedicate an entirely separate post to them. What matters from the point of view of the entire memorandum is the 3-layer rule described below. Right now just remember that the main part of the memorandum should be between the initial summaries and…

f) Prayer for relief

The final part. A short and sweet statement at the very end of your memorandum which, preferably in a more persuasive, affirmative manner, once again enumerates what you request the judges or arbitrators to do. It might contain hand-written signatures of authors of the memorandum.

g) Table of authorities and cases

Often an obligatory part where you cite sources you used to support your position. Since there are usually no limits on its length, you better make sure its well-developed and demonstrates the quality of your research. You should also arranging it to make life of your reader easier: sort authorities in alphabetical order, provide full and coherent information about every source, distinguish and assign different cases and awards depending on their type or jurisdiction they come from. Do it as if you were supposed to use this table to quickly find sufficient information about each and every citation and quote.

  1. Stick to 3-layer structure

This rule is relevant mainly for the main argument and how its structure is shown in the table of authorities. It should not have more than 3 layers. What does it mean? Let’s look at this example:

I. This tribunal lacks jurisdiction over the claims brought by Claimant

A. Claimant failed to comply with the pre-arbitral steps provided in the arbitration clause

  1. Claimant did not negotiate with Respondent for 30 days as per the clause
  2. Claimant did not submit the case to obligatory mediation

B. The arbitration clause encompasses only claims for liquidated damages

  1. The wording of the clause is specific and narrow
  2. Parties expressed common intention to interpret the clause narrowly during negotiations

This short piece could have been taken from a table of contents of a written submission. As you can see, it is relatively short and the reader need just a quick look to understand what the issue is about and arguments are being put forward. It would even be possible to  understand what the argument is about just be including the two first layers of arguments. If there were four layers, the pictures becomes blurred – and you should strive for clarity. Three-layer structure is optimal for the purpose of the table of contents and the overall skeleton of your memorandum. Firstly, it is uncomplicated, but provides you with enough space to mention all key points. Secondly, it makes you more disciplined and prevents from crossing a threshold beyond which chopping your memorandum into more separate bits actually makes it impossible to follow. Thirdly, in a moot court case it is hardly ever necessary to divide the argument further, since it is not complex enough. Of course, it might happen that you need an additional tier somewhere within the text of the memorandum. In that case, I recommend omitting it in the table of contents, as it will be likely too detailed.

I hope that acting in accordance with these guidelines will help you conceptualize and create a written submission that’s a pleasure to read. In the next post we will dig deeper and see how to structure individual arguments supporting particular claims and statement. Stay tuned!

All the best,

Marek