Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode V: ‘Five Bad Habits You Can Avoid’

Welcome again to the Moot Court Advocacy Series! The last time we discussed how important it is to show your good manners during a pleading. As a follow-up I would like to give you some more advice regarding five common mistakes that moot court counsels make when they interact with tribunals – and why they should be avoided.

  1. Never be sorry

Nowadays people have the tendency to apologize a lot. Of course, in everyday life it is often necessary and expected of us when we do something wrong. However, moot court pleadings are different. You are expected to get things right and to acknowledge getting them wrong.

Many moot court counsels tend to apologize for making a mistake in fact or in law or for being unable to answer a question. This is wrong. Arbitrators or judges are not your professors, parents or friends and you do not harm them for making a mistake. By erring you harm your clients’ position and its chances of winning the dispute, so you should be apologetic towards them (though during a moot court they are not in the courtroom to accept it). When you apologize for making a mistake in front of arbitrators you actually undermine your position even further without gaining tribunals’ sympathy.

Of course, there are certain situations where it is OK to apologize. Be sorry when you mispronounce the arbitrator’s name. Be sorry for misstating the page of the record and having to redirect the tribunal’s attention elsewhere.  But do not damage your credibility by being sorry for your mistakes or lack of knowledge – acknowledgment and a step forward towards more accurate arguments is far better and persuasive.

  1. Never thank for questions

Just like with being sorry, in everyday life we are expected to be thankful for what others give us or do for us. Just like in case of being apologetic, moot court pleadings are slightly different in terms of gratitude. Many counsels tend to automatically say ‘thank you’ to judges and arbitrators for almost everything, questions included. It is unnecessary – they have the right to ask you questions during the pleading and will gladly do so. They do not make you a favour, so you do not need to be grateful. The only thing you can thank the panel for is an additional minute or two they might give you at the end of the pleading when you are running out of time.

  1. Never complement the arbitrator

Saying ‘thank you, mister arbitrator’ after every question you are asked is bad, but what is even worse is praising these ‘very good questions’ in the very next sentence. Do not think you can win anything by complementing what arbitrators do. During a pleading assume they know that everything they say is brilliant and that they need no appreciation from you as a counsel. The only way you can make the arbitrators respect you, like you and listen to your arguments is by giving an excellent performance and serving their needs as a counsel. Other means will actually produce an opposite result and make a very bad impression.

  1. Never interrupt the arbitrator

Everyone hates to be interrupted while they are speaking – and the same goes for judges or arbitrators. You must pay attention to what is going on and learn to stop talking at the very moment one of the members of the moot court panel tries to say something. If you fail, you make an impression you try to prevent them from asking a question. An as you probably imagine, outshouting the judge is unacceptable. When you are interrupted, stop talking and wait patiently until the judge or arbitrator finishes what they wanted to say. No matter how irrelevant, incorrect or hostile this intervention is, you always have an opportunity to refer to it is when the member of the panel has finished.

  1. Never confuse the tribunal

While you plead it is important to remain consistent and precise. You turn up for the hearing in order to represent your client, in the vast majority of cases a claimant or a respondent in a dispute. However, in a heated debate that may follow many people start to interchangeably use terms “I”, “we”, “my client”, “the claimant”, “the respondent”… It is misleading. The tribunal us usually only interested in what your party’s arguments are. By using word like “we” and “I” you make an impression that what you are saying is just your personal view, not authorized by the party you represent. Referring to it as “my client” may make certain arbitrators feel as if you distanced yourself from the position you are taking (though from my experience for some of them it will be natural and they will like it that you are so immersed into the case). The safest way is to stick to the good, old “claimant” and “respondent” and names of the organizations or individuals that represent. It is easy to remember and should not cause any confusion.

I hope that by eliminating these five bad practices you will never antagonize judges during moot courts!

All the best,

Marek

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