Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode IV: ‘Good Manners Matter’

This is the Moot Court Advocacy Series! It’s time to have a look at some very basic rules you should follow in order to make a good impression and then – not to spoil it by the end of the pleading with basic errors! Let’s see how to behave after you take the floor.

  1. Be courteous

Every moot court hearing is a simulation of a formal dispute resolution mechanism conducted by professionals. It is not a heated political debate or a discussion between colleagues in a bar. Even though pleadings are often a conversation between the tribunal and the counsel you should do your best to impress the tribunal with your propriety and high standards. Rude behavior is highly unprofessional, taints even the best arguments and in general is scored poorly.

Of course, each hearing is an exciting experience – you are in an adversarial proceedings with clever opponents that are ready to argue the case in favour of their client as hard as you are. However, no matter what happens you must remain polite towards the judges or arbitrators, the other party and your co-counsel.

From my experience, mooties most often commit the following mistakes:

a) Interrupting the other party

You are allowed to speak only during the time allocated to your part of argumentation or in response to arbitrators’ questions. Interrupting the other party while they plead or your co-counsels while they plead is prohibited, will make a very bad impression on arbitrators and will be likely penalized.

b) Pointing to the other party or looking at them while pleading

When you plead you should be 100% focused on the panel. Pointing to the other party’s counsels or looking at them distracts the judges or arbitrators. Not only will it severe your connection with them – many will find this behavior rude and accusing.   To avoid it just pretend when you address the tribunal that the opposing counsels never turned up for the hearing.

c) Disrespectful attitude towards the other party

Not focusing on the other party does not mean not focusing on their arguments. During your pleading and rebuttals you will likely need to refer or respond to the other party’s position or to what its counsel stated. The best way to do it is to use polite, neutral expressions like: ‘claimant alleges’, ‘respondent stressed that’, ‘the counsel for claimant argued’ or ‘the counsel for respondent stated that’. Never refer to the other party and counsels as ‘he’, ‘she’ or ‘they’.  It is very direct and many people will perceive it as rough and inappropriate.

d) Using strong language

The underlying assumption during every pleading is that two parties meet to solve a dispute in good faith – they just have a disagreement about interpretation of the rules. Of course, in real life that might not always be true. However, in the perfect world that everyone is trying to recreate during a moot court you should avoid suggesting that the other party is dishonest or deliberately lies. Of course, while trying to argue they case less skillful opponents will employ such tactics hoping that the moot court panel will not notice. You might feel like saying then that the other party is lying about facts or manipulating the tribunal. However, it is far safer and more appropriate to use clear, yet neutral expressions. For instance, you can point out that the other party’s counsels ‘misstated the record’, that they ‘conveniently omitted’ an important fact or that they ‘err in their interpretation’. The tribunal or the court will understand your argument and you will not risk you professional image.

e) Using sarcasm

What sells well on Twitter or during academic debates often does not often persuade courts. It certainly applies to sarcasm. Using it against your opponents seems petty – as if you had to resort to it in absence of strong legal arguments or persuasive analysis of the facts of the case. Sarcasm may as well be misunderstood due to cultural or linguistic factors or taken as insult. In any event, you risk putting yourself in a very unfavourable position because of your own words. Avoid it/

f) Taking French leave from the room

Once the pleading is over, do not rush outside of the room – a handshake with the arbitrators and other counsels is a must, no matter how good or bad the pleading was.

So, be courteous – at the end of the day it is a court, isn’t it?

  1. Watch your mouth

Although simulated pleadings often tend to be less uptight than people imagine, no matter how relaxed the tribunal’s attitude is your language must remain appropriate. You participate in a formal proceedings and it has to be reflected in the way you communicate. ‘Cannot’ and ‘did not’ should not suddenly turn into ‘can’ts’ and ‘didn’ts’. ‘Yeahs’ and ‘mhms’ should be skipped. Phrasal verbs should  be replaced with their more elegant equivalents. Your language, though obviously far more conversational than in the written memoranda, should nevertheless follow all rules that draw the line between formal and informal language.

  1. Maintain eye contact

It is easy to stop looking at the judges while you talk. Your notes and the record will be drawing your attention and you will instinctively attempt to escape the arbitrator’s sight when asked a difficult question or confronted about your reasoning. Just as in a real life, not looking someone in the eyes is associated with lack of honesty or interest in the conversation. It takes a lot of training and self-confidence to be able to maintain eye contact with the whole panel, especially in such circumstances, but it is worth it. You will be perceived as much more trustworthy, convinced of the power of your arguments and capable of defending your reasoning.

  1. Stay calm whatever happens

Everyone knows that pleadings are stressful. However, even if every muscle in your body is shaking you must not show it. The more relaxed and in control of the situation you seem the better. Fidgeting, fake smiles, nervous laughter, cracking voice and other signs of stress undermine your credibility, since they cast doubt on the genuineness of your arguments. Furthermore, you must never give the impression you are bad-tempered. You might get angry at the other party’s arguments or at your own performance, but expressing it publicly in any form is highly unprofessional. It is equally risky to let your joy take over you if things go well: triumphant smile seen by the arbitrators really does not make a good impression. All in all, remaining calm and positive during the whole pleading is the best strategy.

  1. Be attentive

Pleadings, as every form of conversation, require a certain degree of empathy and dynamic reactions to how the party you are talking to reacts. If you can read signals sent by judges or arbitrators you are much more likely to make them happier with your performance by giving them exactly what they want, when they want it. On the contrary, if you fail to do it, moot court benches will think you ignore them and stick to your memorized script irrespective of what is going on. In consequence, pay attention to what every judge does. If one of the arbitrators seems to have a question, provide an opportunity to pose it by finishing a sentence earlier. When the tribunal seems not to be paying attention, you can gently wake them by beginning your next sentence with a short, direct exclamation, like ‘Members of the Tribunal!’. In case you see the arbitrators look at you in confusion or disbelief, it means they did not get your argument and you probably should rephrase it. If you notice growing impatience, wrap up and move to the next issue.

If you bear these pieces of advice in mind you will for sure impress everyone and lay excellent foundations for your legal arguments!

Best wishes,

Marek

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.