Moot Court Advocacy Series – Season II: ‘Oral Advocacy’, Episode X: ‘Handling Questions Like an Expert’

I often underline that pleadings are not recitations of previously memorized speeches. One of the reasons is that judges have the right to interrupt you and ask questions. What is more, the way you deal with them usually makes a huge difference for the overall result. On one hand, clear, direct, witty answers will make your pleading stand out  and score you many more points than a perfectly delivered, yet bland speech. On the other, bad answers can ruin you and leave the judges with an impression that you just learnt everything by heart and lack knowledge and skill to engage in a meaningful discussion about the case.

The number, type and difficulty of questions will vary significantly. You might get very easy, basic questions regarding facts of the case or applicable laws aimed at testing if you have done your homework. Hopefully, you will be also asked plenty of questions regarding your arguments and reasoning. Furthermore, some arbitrators are interested in broader, policy-related issues or ‘what-if’ scenarios related to the case – you have to be able to address them as well. Sounds intimidating? It should not, since you can prepare for it.

Here are seven rules you should follow if you want questions to be a pleasure, not a nuisance!

  1. Questions are an opportunity – not a curse

Your approach really matters and it is far easier to plead well if it is positive, not hostile. Arbitrators and judges (or at least – their vast majority) do not ask questions to humiliate you, prove that they know the case or the law better or find a reason to give you less points than you deserve. They do so, because they want to turn pleadings into something more than mere plays with defined roles and arguments. They are interested in confronting your ideas about complicated legal issues. They wish to test your reasoning and your ability to defend it. They want to make sure they understand your position clearly. All in all, their intention is to have an in-depth intellectual conversation about the case. Once you understand it, you will find holding the line even under barrage of questions much easier.

  1. Prepare, since fortune favours the ones who rehearse

Preparing for the oral part of the competition involves working on all aspects of your pleading. You need to think about the best structure, select the strongest arguments and work on the speech until it flows smoothly. An important part of these preparations should be dedicated to potential questions. While practising you should think about both obvious and less obvious questions and how to answer them. You will realize after a couple of training rounds (preferably with different people acting as judges) that there are questions which are asked almost always, or at least repeatedly. It is logical – every moot court case usually focuses on a limited number of controversial issues that give rise to a particular set of questions aimed at solving them. It means you can prepare the best possible answers long before you are asked anything by judges during the final oral rounds.

Firstly, make sure you know the basics – arbitrators which are less interested in the case or not so well versed into its details tend to ask most general questions (and it is embarrassing if you cannot answer them, no matter how legal analysis is). Learn the facts of the case and on which page of the record to find them in the bundle to quote them if necessary. You also need to know what is the applicable law and why it binds the tribunal. Secondly, think more broadly. The rest of questions will depend on the kind and complexity  of issues contained in the moot case. Brainstorm with your team. Invite people unfamiliar with the case who think out of the box and can surprise you with something unexpected. Ask more experienced lawyers for help to check what kind of issues spring to their mind when they hear your arguments and apply them to the case. The more questions you predict and find answers to this way, the better – you reduce the risk of being surprised and forced to come up with something in the matter of seconds during a pleading in the oral rounds.

  1. Give ‘yes/no’ answers

We all know that the legal world, due to its complexity, is plagued by the ‘it depends’ approach to almost every problem. Unfortunately, during a moot court pleading this  answer is off the table. You need to be clear what your position is – if you are not, how can you persuade judges that they should adopt it? In consequence, if you know the answer will be affirmative, just begin by saying ‘yes’. If you know your answer will be negative, just begin by saying ‘no’. It is easy when this ‘yes’ or ‘no’ supports your position. If it does not, immediately add the magic word ‘however’ and offer an explanation why an honest, yet unfavourable answer does not really affect your position. Never try to misstate or omit. It can confuse the judges and make your position seem unclear. In the worst case, the chances are high you will be caught and in consequence ruin your credibility. In your answer that follows focus on strengthening your position or demonstrating that, despite an unfavourable fact or law,  your argument still holds due to other, prevailing circumstances.

  1. Be brief

In the previous episode I mentioned how difficult it is to keep control over the passing time when you are asked a lot of questions. Their number is a factor you cannot influence. What you can do instead is controlling the time you spend answering them. Many people tend to provide lengthy explanations, especially when they are surprised by a question that they did not expect. It is a mistake – the more time you spend circling around an issue, the more blurry the picture becomes. Be succinct instead. Give the judges nothing more and nothing less than what they wished to hear from you and go back to your pleading. A correct, concise answer will also be better remembered by the panel than a mini-lecture with a lot of words and little content.

  1. Be relevant

It is easy to get distracted while answering. Arbitrators might contribute to it – some will ask you very abstract, hypothetical, ‘what-if’ questions. Since they are the ones who govern the pleading you must not dismiss these questions as irrelevant. However, you do not have the time to discuss matters only indirectly or partly related to your case. To avoid letting the discussion drift too far from your case do not be afraid to explain your position very shortly and then go back to the case immediately. You are a counsel: your performance should be focused around the case and real problems at hand, not theoretical  digressions.

  1. Answer without hesitation

A common mistake many mooties make is an attempt to delay answering to a question. You might be asked a question you simply do not know the answer to or a question which you know you will address later during the pleading. Unfortunately, when judges ask, it means they want to hear an answer immediately. You cannot ask them for a minute or two to think or dismiss the question by stating you will address it later during the pleading. If you are surprised with an unexpected question the only think that can save you is your brilliance and the overall level of preparation. To buy yourself  a few precious seconds you can take a sip of water before answering. Only in extreme circumstances, when you are completely stuck, some people recommend resorting to an ultimate answer: ‘Unfortunately, I am unable to answer this question now, but I will address this issue in a post-hearing brief’. The tribunal will know you had no idea what to say, but some judges should appreciate it more than awkward silence or embarrassing excuses.  However, if you know the question covers something you are going to mention later, just give the shortest answer possible and underline that it will be discussed in detail by you or your co-counsel later during the pleading. Sometimes a question like this might be actually a good opportunity to move forward. You can begin you answer by stating that ‘this question brings me to my next submission, which is…’ – and smoothly proceed to another argument.

  1. Ask for clarification if you misunderstand

It is way better to make sure that you and the panel are on the same page instead of wasting precious seconds of your pleading on explaining something the arbitrator are not interested in. It is perfectly fine to ask the arbitrator to repeat the question if you think you misheard it or to rephrase it if you are not sure what the member of the panel meant. Just remember to be courteous and focus, so that the second time you understand the question. It is very embarrassing for both the judges and the participants if they fail to communicate entirely and have to drop an issue…

I hope that now you will be able to take advantage of every single question you might be asked during your pleadings.

All the best,

Marek

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