Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode II: ‘Before You Start Talking’

Welcome to the Moot Court Advocacy Series! Today we will go through a short checklist that should help you deal with problems that may arise regardless of how well you are prepared for the oral pleading. No matter how much you practiced, an awkward situation or stress at the beginning can ruin your efforts. Let’s see how to avoid it!

  1. Take care of your image

Surprised it is the first point? Worry not – I do not argue an expensive suit wins the argument for you. However, the knowledge that you look perfect boost your self-confidence and the professional allure you give definitely increases your persuasiveness. At the same, it is something you can hardly improve five minutes before the pleading, so it is better to take care of it before you leave the hotel room.

The rules for gentlemen and ladies are simple: follow the rules of conservative elegance which shaped nowadays business attire. Men should put on their suit (preferably a dark blue one) and a white or light blue shirts (make sure that sleeves and pant legs are neither too short nor too long) accompanied by a calm tie and a matching set of shoes, belt and watch. Women should comb their hair neatly, just as their male colleagues choose a dark jacket, a long skirt and a light blue or white shirt. Jewellery and make-up should be discrete and inconspicuous. This way you will not only sound like a real counsel, but also look like one.

  1. Relax and calm down

If you are an advocate, pleadings are the most exciting, yet potentially the most stressful part of the competition. We can safely assume every pleading student is stressed, but the most successful ones never give such impression. The more relaxed and natural you appear, the more credible, persuasive and likeable you are. Find a way to reduce stress that best suits you – just make sure you do not enter the room shaking. I strongly discourage booze and drugs, though – for obvious reasons.

  1. Arrange your table and equipment

After you enter the room where the pleading takes place the first thing you should do is making yourself comfortable and arranging the space you will use for the purpose of your pleading. A separate post will be dedicated to how your table should look like during the pleading (stay tuned!) However, make sure you have everything you need for the pleading, including all the papers and water. Organize it neatly. Double-check your phone if you use it for timekeeping – it simply must not ring or vibrate. It will be highly unprofessional at best or disqualify you in the worst case.

  1. Introduce yourself to the tribunal

It is unlikely you will know your judges or arbitrators (actually, you probably should not, for the sake of impartiality). Once all the judges or arbitrators are inside the room, stand up with your co-counsel and introduce yourself. A handshake and a short exchange of your moot court business cards will not only show your good manners, but also break the ice between you and them. Just make sure you do not reveal your university or professional affiliation if it is against the rules of the competition!

  1. Agree on time allocation and order of proceedings with

In the majority of competitions you are given large freedom to decide how much time you can dedicate to each of arguments and the order in which you will present them. It is very helpful, but can provoke all sorts of frictions between the teams. People might have very different ideas on how to proceed. In some jurisdictions the idea that it is the claimant who should begin the argument is so prevailing that they ignore … Sometimes teams divide issues between counsels differently. Sometimes an issues are very peculiar and teams qualify it differently. In consequence it is OK to differ, as long as you manage to agree on the order. If you and your colleagues from the opposing team fails, the arbitrators will decide, but they prefer to see good cooperation between counsels.

In the majority of competitions you will have to address issues pertaining to jurisdiction (or preliminary questions, like security measures) and merits of the case.  In real-life proceedings it often leads to bifurcation of the proceedings (separating it into two distinct parts) since it makes no sense to adjudicate on the merits in case a court or a tribunal finds itself incompetent to do so. During most moot courts there is not time to do so and merits are argued directly after jurisdiction, somewhat under assumption that the tribunal found itself competent.

In most moot court cases claimant (or plaintiff, or appellant – it depends) approaches the tribunal to demand something from respondent (or appellee). In response, respondent brings objections to jurisdiction and counterarguments to what claimant argues. It forces the claimant to argue that the respondent’s objections are groundless. This naturally divides the pleading into four sections

In consequence, it makes sense to firstly give the floor to the respondent, who objects the tribunal’s jurisdiction. Then the claimant can follow with  its counterarguments. Subsequently, since it is the claimant who demands the tribunal to order the respondent to do something (usually – pay), it should continue with arguments on merits. Lastly, the respondent can present its position by answering to the claimant’s arguments. Both jurisdictional and substantive parts should be followed by a rebuttal and a surrebuttal.

In my opinion moot court tribunals usually prefer this most intuitive structure. It is clear, provides flexibility for both counsels and arbitrators and allows efficient time allocation. However, alternatives should not frown upon, as long as they are simple and justified in the light of the issues you are dealing with in a particular case.

Cross out these five boxes on your checklist and you are off to a good start!

All the best,

Marek

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