Welcome again to the Moot Court Advocacy Series! Today’s episode will be dedicated to the skeleton and flow of your pleading. We will get a bird’s-eye view beyond the cliché introduction-arguments-conclusion rule.
Some say that moot court judges are like children you have to guide through a dark corridor with many obstacles on the way. This dark corridor is the case you are trying to solve: you need to hold arbitrators’ hands and walk them through it. If you make them feel safe with the logic of your reasoning and confidence of your delivery – you win. In contrast, if you come across as unsure of your own position, something casts a shadow of doubt over your credibility, you present arguments that contradict each other or you fail to explain step-by-step how they derive from relevant facts and laws – you lose.
In consequence, to succeed and persuade the tribunal, you must immediately make an impression you are the best guide through that ‘dark corridor’ and uphold it through the entire argument. You can achieve it if you look at the pleading as a whole and understand what is expected of you in any given moment. You have to make a right first impression in your opening, maintain control, ensure smooth flow during your entire pleading and never get caught off-guard. Easier said than done? Let’s see how to achieve it.
1. Do not memorize your pleading…
Seems counterintuitive? Probably that is why many young mooties fall into this trap and try to plead in line with a multi-page scenario lying in front of them. It is a mistake. Your pleading is not (entirely) a play in the theatre and you should not recite it as a monologue. Firstly, unless you are a skilled actor, it will sound artificial, lack energy and credibility necessary to sway judges in your favour. Secondly, your might find yourself under a barrage of questions, be directed by the tribunal to address issues you did not find crucial or get surprised by the other party’s arguments. It can throw you off balance, make you anxious and render the script you memorized irrelevant.
For the purpose of the pleading you should rather remember issues and arguments, not words and sentences.
2. …(apart from its intro)…
The only part I recommend you memorized is the very beginning. Why? You are given only one shot at making a good first impression. Moreover, this part is short enough to get everything right – and stressful enough for the majority of people to mess it up!
Your intro should demonstrate you are self-confident and well-prepared, as well as provide the tribunal with basic information to make sure everyone in the room is on the same page: your and your co-counsel’s name, the party you represent, your time allocation and structure of arguments.
In consequence, your intro (depending on the rules of the competition, the parties and other circumstances) might look like this:
“Members of the tribunal, my name is XYZ, and this is my co-counsel ABC. We represent DEF Ltd., respondent in the present dispute. I will address the jurisdiction of this tribunal, while my co-counsel will focus on the merits of the case. Each of us will speak for 14 minutes reserving one minute for a rebuttal and a surrebuttal. Members of the tribunal, respondent argues that this tribunal has no jurisdiction for two reasons. Firstly, the parties signed an arbitration agreement which is invalid and therefore does not bind them. Alternatively, if the tribunal finds otherwise, the claimant failed to comply with the pre-arbitral steps outlined in the arbitration agreement and is precluded from bringing the case before this tribunal.
Moving on to my first submission…”
This intro, presented in a calm, even pace while maintaining eye contact with all arbitrators should immediately make an impression that you know why you are in front of them and you know what you are doing.
3. …and do not read it either…
Let’s face it – it is highly unlikely you will manage to learn by heart a long speech and deliver it without interruptions. You will undoubtedly have it written somewhere, what will automatically draw you to the pages where it is recorded. Reading your pleading is even worse than reciting it. You will not establishes any sort of connection with the arbitrators if you spend most of the time looking at the page in front of you and not in their eyes. You will come across as boring and monotonous. Last but not least, what is the added value of hearing something that the arbitrators might as well read on their own?
5. …but rehearse until you fully assimilate it…
A perfect pleading is delivered naturally: you are neither an actor who strictly follows the script, nor a speaker who presents a speech, but a storyteller who knows what and when to say and is open to questions and interruptions. How to make this huge step forward? They say that professionals practise until do not get it wrong. You should follow the same strategy. Regular rehearsals with your team mates, endless rounds of questions and many attempts at connecting your arguments in a clever way are probably the only way. However, it is worth it – not only is it the best in terms of rhetoric, but also demonstrates that you are completely immersed into the case and know its every aspect intimately. Can here be something more persuasive?
5. …and be responsive!
As discussed previously, most often half of the pleading of each of the teams is a response to what the other party argues. Usually it is the job of the claimant’s counsel for jurisdiction and respondent’s counsel for merits. Being flexible is critical here, since the other party might use different structure of arguments than you would or put emphasis elsewhere. Nevertheless, you cannot just ignored it: you need to adapt to the other party’s structure of arguments (or explain why you will not do it), make sure you respond to presented arguments and provide the tribunal with your own. Scripts and memorized speeches will be of little use in this case.
Making your pleading flow is by no means an easy task. In future posts I will discuss in more detail many more small parts that together form a winning pleading. For now, feel free to contact me if you have any questions!
All the best,