Hello everyone! This is another post from the Written Advocacy Series. In the previous posts I wrote about the mindset that will be helpful to create an excellent memorandum and the first essential steps to take before you actually start drafting. Today we will go further down the checklist and see what else will help you produce a good written submission.
- Read and discuss the case thoroughly
Individually and as a team, you need to get to know the record intimately. Reading it all once or twice will not suffice. More analysis combined with exchange of views on the issues and possible approaches is necessary. Take time to discuss the moot court problem with your teammates and coaches. While you are certainly going to come up with new arguments and creative interpretations of facts while working on it later, this way you will make sure that nothing essential escapes your attention at the very beginning. Moreover, it should make clear what type and amount of work is required for each issue. It is important, since in the next step you should…
- Divide the issues between each other
Moot court problems usually point out 4 to 6 key issues that teams are supposed to address in the written memoranda and oral pleadings. Teams often have similar number of members so it makes sense to divide issues and assign one to each person. Just as in real life dispute resolution, if everyone worked on everything simultaneously, nothing would be ever finished. Of course, it does not mean that team members will not have an opportunity to contribute to argumentation on the parts of memorandum developed by others. However, for every issue there must be a person in charge who will draft a relevant part of the memorandum.
One thing to bear in mind while dividing the issues is their level of difficulty. They will likely vary in the amount of research, complexity of arguments or general amount of legal knowledge necessary to address them in a correct and persuasive manner. Since your team will be likely composed of people with varying level of experience, it is reasonable to give it a thought and assign the most challenging parts of the problem to the most experienced members of the team.
- Always start with structure and skeleton argument
Before you begin drafting your memorandum, you should conceptualize it. Gathering key arguments, identifying the strongest parts of your position and arranging everything in a logical, smooth, persuasive structure is crucial. I strongly recommend preparing a one-page-long skeleton argument for every issue before you start drafting the written submission. It does not mean your structure of arguments or points you focus on will not change later – they might. But the more you discuss each of skeleton arguments as a team and try to improve the flow of arguments, the lower the risk you will have to whole long sections of text half-way through the drafting process because they suddenly turn out to be odd, superfluous or entirely incorrect. The best way to produce a helpful skeleton around which you will build your memorandum is to imagine that you are the arbitrator and ask yourselves key question: do I understand this structure of arguments? Does it persuade me? Am I buying the story and legal analysis that lied behind it?
- Do your research…
It is rather self-explanatory, but I could not stress it more: find and analyze authorities and cases to back your position at the beginning, not at the end. It is more than likely that in a moot court problem you will face legal issues you have never seen before. To comprehend them and solve the puzzle, you need solid grounds. It is very difficult to read through any authorities a week or two before the deadline for submitting memorandums (at this time you should be polishing your memorandum). What makes it even more important is that moot court problems are most often focused on controversial questions without obvious answers. In these circumstances it is highly unlikely you will be able to solve them without a thorough research.
- …and gather it in an organized manner in one place
This point, although rather technical, is also important. If you follow point 4 and find tons of commentaries, cases and articles, you then need to keep them somewhere so that they do not get lost and you can quickly go back to them when needed, even during the oral part of the competition. The easiest way to ensure no piece of research is lost is to establish a platform for file exchange and storage for the whole team I mentioned previously as one of the essential steps to take before you start drafting.
I hope that now you feel you can have your preparations under control Let me know if there are any other things to do that you find important at this very early stage. In the next post we will dig deeper into drafting process.