Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode III: ‘Spicing It Up’

Hi all,

here comes another episode of the Moot Court Advocacy Series! This time let’s focus on how to make your pleading more persuasive and memorable for tribunals. You are right: not only its merits matter. You can – and should – use pure rhetoric to your advantage, to turn a bland speech into a brilliant performance.

There is more to oral advocacy, especially in a moot court environment, than raw strength of your arguments. As it has already been discussed in the previous episode dedicated to storytelling, you are far more likely to persuade the tribunal if your pleading is easy to follow and interesting to listen at the same time. You are aiming for something more than a mere recount of arguments. Luckily, there are many tools at your disposal that will help you achieve it.

Using figures of speech effectively is always a balancing exercise. On one hand, it can help you underline your most important arguments, make a complex argument easier to swallow or conceal a weak point in your line of defence. On the other hand – focusing too much on rhetoric can backfire, especially if your opponents join the game and exploit your own words to their advantage.

Let’s learn how to spice your pleading up, how not to overdo it, and what is strictly forbidden!

  1. Metaphors

A metaphor is a figure of speech that directly refers to one thing by mentioning another for rhetorical effect. In a moot court environment you will most often hear metaphors either in the intro, while counsels try to set the stage for the tribunal in an engaging way, or at the very end, to conclude in a memorable way. Sometimes metaphors appear also as a way of explaining a particularly complex argument or stress a crucial set of facts. They also tend

Some arbitrators like metaphors a lot and they will praise you for being able to paint a vivid picture of the case. They usually appreciate the effort made by counsels to add this abstract layer to their pleading, especially if the attempt is made in order to explain a particularly complicated point which would be difficult to grasp otherwise.

However, metaphors can be dangerous as well. The first major risk is the one of being misunderstood. Your most important task as a counsel is to make sure that the tribunal understands the point you are making. Members of moot panels are brainy people, but they come from different cultural backgrounds, have read different books, have seen different movies, have different associations with images and objects you might bring up for the purpose of your metaphor. Bear in mind that a metaphor which is perfectly clear to you might make no sense to some who is much older than you, comes from another country or simply – would never use the same image in this particular context.

The second major risk (and from what I have seen it materializes often) is that your opposing counsels take your metaphor and then turn it against you. Quite often metaphors  to be rather easy to reformulate so that they actually hurt your position. If you find yourself confronted with such opportunity – exploit it mercilessly! Tribunals will usually give credit to your opponent for their attempt, but even more to you for your flexibility and ability to react and think creatively.

In my humble opinion, an elaborate metaphor is a figure of speech that is often overused during moot court pleadings. Since it is difficult to find a metaphor which is clever, relevant and understandable at the same time, counsels tend to clutter their pleadings with the ones which are rather random and unnecessary. I would be extremely cautious with metaphors. Use no more than one throughout the entire pleading, apply it strategically and test several times beforehand to make sure it is understandable.

  1. Quotes

Who does not love quotes? ‘If I have seen further it is by standing on the shoulders of Giants’, Newton once said, and it is true: you can build up on the elegantly phrased, succinct thoughts of other people that suit your line of argumentation. Even though it might seem counter-intuitive in the moot court environment (at the end of the day, it is a formal legal proceeding), I have seen mooties employ quotes quite effectively.

However, there is a catch. Throwing random quotes at the tribunal will not help at all. The quote has to fit the context of the case, come from a know, uncontroversial person which enjoys certain authority. Quoting a successful entrepreneur in order to explain the behaviour of your client in a commercial case or a respected statesman when you represent a public party is probably the best idea.

Remember that quotes can be a double-edged sword, too. A responsive counsel might not have another quote up his or her sleeve to counter yours. However, since application of a quote is a matter of its interpretation, if you do not choose wisely, you might give another party a gift: a way to attack you position by means of alternative interpretation of a sentence or two that were supposed to reinforce it.

  1. ‘Catchy phrases’

Not entirely metaphors, neither comparisons, nor quotes, the so-called ‘catchy phrases’ are usually short phrases which let you articulate a particular thought in a more interesting way which lights up judges’ imagination and automatically engages them. The supply of ‘catchy phrases’ is virtually endless, as the way you phrase or introduce your argument depends on its nature and content. Do you need some examples? There are plenty! From a somewhat overused expression ‘actions speak louder than words’ used to underline inconsistency between arguments made in the courtroom and behaviour of the part visible in the facts of the case, you can carry on and criticize your opposing counsel for ‘cherry-picking the applicable standard’ when they try to selectively apply less and more stringent laws without justification. Instead of saying that the other party is wrong in interpreting provisions of a contract broadly you can call it ‘an unacceptable catch-all interpretation’. And if the other counsel is not too lenient as far as jurisdictional requirements are concerned, instead of explaining to the tribunal that such interpretation is absurd, you should rather claim that they are trying to ‘open a floodgate of claims’. These are just propositions – but if you are capable of inserting a phrase like this here and there you will catch judges’ attention, feed them with thought that will stick and make the whole pleading much more conversation without sacrificing professional allure and healthy distance.

  1. Irony

First of the two figures of speech I would not recommend during a moot is irony. Irony would almost always be perceived as rude and disrespectful either towards the tribunal or the other party. If you are lucky, the panel simply will not get it – but then, they will miss your point entirely and thin you simply must have mispronounced yourself. In conclusion, forget irony – it might be great in social interactions, but not those taking place inside a moot courtroom.

  1. Rhetorical questions

Another one of the forbidden figures it the rhetorical question. The reason is simple – it is the tribunal who asks questions to counsel during a pleading, not the other way round. Maybe when you engage in a very dynamic conversation with a particularly hot bench you can resort to formal question tags in order to stress your crucial points. However, never direct a question at the tribunal and wait for it to be answered.

As you can see, spicing up your pleading is like walking through a minefield: you need to take very cautious steps or otherwise you risk making serious damage to your own position. However, if you succeed, your pleading will definitely win the judges’ hearts!

All the best,

Marek

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