Advocacy for mooters

Introduction

Just as preparing for a moot has much in common with preparing to write an answer to a problem question, so performing as an advocate draws heavily on the advice given previously in this chapter in the context of oral skills generally.

Addressing the judge

Moots are almost always located in either the Court of Appeal or the Supreme Court. While there is no reason in principle why a moot should not be heard by a bench of three or five judges (depending on which court is involved), constraints of sheer practicality often mean that only a single judge will sit.

When addressing the judge, inexperienced advocates often have difficulty in handling the distinction between My Lord (or My Lady) and Your Lordship (or Your Ladyship). The easy way to work out the correct form is that, with one exception, My Lord (or My Lady) is appropriate only where you would use the name of the person you are addressing in a less formal relationship. So, for example, if a friend asks you how soon you will be ready to go out, you might say ‘About another ten minutes, Mary’. Imagining this in the formal context of the High Court, the Court of Appeal or the Supreme Court, with the judge asking you how much longer you need to complete the presentation of your case, you would say ‘About another ten minutes, My Lord’. The exception is where you are addressing a bench consisting of two or more judges and you need to refer to one judge while speaking to another. Responding to the same question in this context, you would say, for example, ‘I hope to be no more than another ten minutes, My Lord, but it may take me a little longer to provide a full response to the point which My Lord, Lord Justice Blank, raised a few moments ago’.

Turning to the correct use of ‘Your Lordship’ or ‘Your Ladyship’, the principle is, once again, clear. This usage is appropriate only where, in a less formal context, you would say ‘you’. So, for example, if your housemate says ‘shall we have pizza tonight?’ you might reply ‘if you like’. In the context of the courtroom, if the judge says ‘I do not need to hear any further argument on this point’, you would reply ‘as Your Lordship (or Your Lady-ship) pleases’.

When speaking about another judge at the level of the High Court or above who is not involved in the instant hearing, the correct usage is His Lordship (or Her Ladyship). So, for example, when citing an earlier case as an authority, you would say

I refer Your Lordship to the speech of Baroness Hale of Richmond in the case of R (Williamson) v Secretary of State for Education and Employment in the second volume of the Appeal Cases reports for 2005, at paragraph [58], where Her Ladyship said ‘…’

Where the case dates from before the introduction of numbered paragraphs, the pinpoint citation would be to the page number and – where the series of law reports offers the opportunity – a marginal letter. In any case, an adjustment to Lord (or Lady) Justice Blank or Mr (or Mrs) Justice Blank, as appropriate, will be obvious.

When speaking of a circuit judge, you would say His (or Her) Honour Judge Blank, or, when speaking of the judge from whose court the instant appeal has come, you could simply say the learned judge or (if the judge was sitting at first instance) an alternative would be the learned judge at first instance, or even the learned trial judge.

Citing authority

Many students fall into the trap of thinking that textbooks and journal articles contain the law, even though it is clear (see pp. 78–81) that they do not do so. All that any textbook or journal article can ever contain is what its author thinks the law is, with the law itself being contained in the relevant cases, statutes, treaties and so on.

Where a case is reported in the ‘official’ Law Reports you should cite that reference (see pp. 84–85). When giving the reference orally, you should use the relevant words in full rather than articulating the established abbreviations. (The citation of R (Williamson) v Secretary of State for Education and Employment (above) shows how this is done.) When citing statutes, the short title is sufficient (see p. 150).

Using authority

Many students who study legal method (or whatever it may be called in their college or university) seem to regard it as an introductory chore which has been imposed upon them by the designers of their curriculum gratuitously, rather than as the foundation of their subsequent studies. If mooting achieves nothing else, it will at least dispel this misunderstanding, since a sound grasp of the principles of both binding precedent and legislative interpretation will prove indispensable when you are constructing and arguing your case – and perhaps even more so when you are trying to persuade the judge that your opponents’ case is flawed. (Chapter 7 contains a useful overview of legal method, although by the time you are mooting you will be likely to have read a more substantial treatment of the subject, such as McLeod, Legal Method, 9th edn, 2013, Palgrave Macmillan.)

Dealing with questions from the judge

Every mooter must expect to be interrupted at least once by the judge. It is important to realise that this is not done out of spite or frustration, but because it is an essential part of the mooting exercise to find out how the advocates deal with questions. (As many an experienced mooter has discovered, preparing an address on the law is one thing: responding to questions may be quite another.) If you do not understand the question which is being asked, you should say so, although it is always good psychology to adopt a form of words which suggests that the lack of effective communication is your fault rather than the judge’s. (‘I am afraid I do not quite follow your Lordship’s point’ is likely to produce a much better response than ‘If your Lordship could manage to express the question more clearly, I might be able to answer it’.)