There is a technique in every art which has to be learnt by its practitioners. The same is true for the Art of Advocacy. Any law student can become a competent advocate by learning the principles of the art of advocacy by practice and patience. The experience of research is profitable; the experience of Oral Presentation of complex legal argument is a valuable training. The experience of being put to the inquiry by a sharp presiding Judge will stand you in great stead for additionally frightening experiences later in your profession. Law students have delighted in the experience of mooting and picked up extraordinarily from it. So it is indiscreet to play Judas on a test. This article contains information about the practice and procedure of moot courts which a law student must know in order to participate effectively and successfully in moot court competitions. How To Prepare For A Moot Court Competition | Part I – Preparing A Memorial
A moot is an oral argument on some contentious point of law. It is designed to simulate, as closely as possible, the conditions of actual litigation. It helps in training students in the practical aspect of law; it does not only help in imbibing them with the procedure of a court but also in improving their mannerism, presentation and oratory skills.
Like in an actual court, students act as advocates and argue upon an imaginary or a decided/undecided case, or it could also be on some specific legal issue, civil or criminal (or a petition). They are judged by a person having knowledge of the law, it is not necessary that the person should be a sitting or a retired judge of any court. According to Stephen’s Commentaries on the laws of England, every court must have at least three constituent parts, the actor (who complaints), the reus (defendant) and judex (a judicial power which will adjudge the case).
If you wish to be a lawyer, attach no consequence to the place
you are in, or the person you are with; but get books, sit down
anywhere, and go to reading for yourself. That will make a
lawyer of you quicker than any other way. – Abraham Lincoln
Each team could have a maximum of 3 members, two speakers and one researcher. A speaker can also act as a researcher and hence, there could be 2 members in a team, too.
The following heads explore the preparatory stage, before and for a moot court.
First and foremost, a student should go through the moot proposition, thoroughly. It defines the boundary within which one has to argue and lays out the whole case in detail; the more one reads it, the more one finds out.
Law is a science which does more to invigorate the understanding than all the other kinds of learning put together. – Burke
Having gone through the proposition will itself make a student come up with issues relevant to the case, it is important to note here that the proposition itself shall have points supporting and against the case of both, plaintiff/complainant and defendant/accused.
You can start this study, with the study of documents after putting them in a chronological order. It is advisable to come up with 3-5 facts in an issue over which a side’s arguments are summed up. This acts as a blueprint to the memorial/file presented before the court. An excess of facts in issue would be an unnecessary addition and one might not be able to express their arguments completely and clearly in the limited time one ought to get. Only important facts should find their place in the file, unimportant ones could either be ignored or be used as subheadings, within the main issue.
Research regarding the facts in issue should have a direction; else, it shall be scattered and never-ending. A student should try to argue around a central theme so as to develop an idea in the judge’s head about what the student expects out of the case or what the student wants the judgement to be based upon.
The theme should be selected from the jurisprudence behind the case. Hence, research planning starts with researching the suitable ‘jurisprudence’ that could be applied to support the side, the student is arguing for.
Having the required facts in issue and a theme, students should next lookup for appropriate laws that could be used in support of their arguments. You must have a thorough knowledge of the Law of Evidence, Code of Civil Procedure and the Code of Civil Procedure. They are the branches of law which lay down the normative framework relating to the use of facts and procedure for arriving at legal conclusions.
This process should take up most of the time for preparation and is the execution of research planning. Considering the moot preposition and facts in issue, one has to find out the appropriate laws to be applied.
Researching involves the study of the following:
Certain facts, laws and acts are mentioned in the proposition which can be used in the arguments. The information so provided could be of use to either party to the case. But now while searching the facts you will distinguish the facts which support you and which go against you. It is useful to have in mind two questions from the outset;
- What has to be proved?
- How is your case to be proved and that of your’s opponent disproved?
Thus, after going through the case many times, you will ultimately isolate the facts which support you and you should counter those which go against you. After collecting all the facts for your case, it is necessary to draw inferences from the primary facts and to formulate a hypothesis which will enable you to gain a true understanding of the case.
The students shall come across many acts that could be used in their favour or against the other party. The bare acts provide an easy access to the provisions of law and their thorough study will help in discovering more sections/laws that will strengthen the case.
Bare acts alone may not be able to articulate the law and provide for further information that could be used in the moot court. One should go through a few books, not many, to get a fair idea of the law and also gather certain leading or important cases that can be cited to bolster the case. The commentaries in turn, also provide for further books that could be cited and used in the case.
Legal Research Portal
With easy access to the internet, there is hardly any need to go through hard copies of legal publications. Accessing online legal research portals, such as Westlaw, SCC online, Manupatra, etc. will help in finding out related cases to the case mentioned in the commentaries, or different case.
These portals are not just records of cases and case laws, but they also provide access to legal notes, research papers, various acts, and other law-related material. Most of them contain case laws, both, Indian and foreign.
Case laws mentioned in well-off portals also provide whether it has been overruled or is res judicata. Hence, it becomes easy to choose important ones from a myriad of cases.
In the preparation of the brief, you must know that the expertise of a good lawyer depends upon his skill in putting precedents to his good use and also countering those which are unfavourable. It is generally advised to use Bluebook format (19th edition) for citation. This is a formal requirement and the format to cite cases is usually provided in the rulebook for the moot court. Different books/publications use different citations but the required and a uniform format has to be used in the memorial.
A citation is necessary as one cannot mention all the sources in the arguments, such as, if some fact is drawn from a research paper, the student might not mention the source during oral arguments, until asked for.
Advocates Act, 1961
It is necessary to go through this act as it provides for the conduct of legal practitioners. It provides as to how one should behave before a judge and in a court and hence, forms an important part of the oral submission.
The object of a pleading is to facilitate a trial so that the points of the issue might be clarified and also the decision given thereon; it also determines that what relief a party is entitled to on the basis of law and fact. Thus, after gathering the required information, it has to be arranged in a certain format, either provided in the rules or the standard that is usually adopted. The memorial is the written submission while arguing orally in the moot court forms the oral submission.
It has to be made for both the side by a single team, i.e., for plaintiff/appellant and defendant/respondent. The rules for its making should be strictly followed as it is to be submitted to the moot court judges and to the adverse team. The teams can bring one themselves, for reference. They can also carry hard copies of judgements, bare acts, sections, various laws and other material that is to be brought to judges’ notice or to act as evidence of the source. The word limit, alignment, spacing and other details are mentioned in the rulebook for the moot court, and the file should be arranged accordingly:
1. Cover page
It must contain the name of the forum before which the proceedings are taking place, the name of the case, the title of the memorial, team code and other such required text. For the appellant/petitioner/plaintiff, the cover page is blue, while for the defendant/respondent, it is red. At no point, on the cover page or in the memorial should students mention their name or the name of their institution.
2. Table of Contents
It defines the structure of the file. It acts as an index to the file, with corresponding page number mentioned next to the chapters. Since argument advanced forms the largest chapter; sub-headings can also be mentioned under the table of contents for easy access to the file.
3. List of Abbreviations
While making the memorial, a student will come across many abbreviations which should be mentioned in this chapter. It helps in reducing the word count and helps in avoiding frequent mentioning of unnecessary lengthy texts. There should be uniformity in using of abbreviations, i.e., a word’s abbreviation should be the same throughout the memorial.
4. Index of Authorities
Every piece of information that has been used to support the arguments should be cited under this chapter. The cases, case laws, books, parliamentary debates and whatever has been mentioned should be cited according to the appropriate citation format. It acts as a reference, in case, the judges inquire about a particular fact. Here, too the corresponding page numbers can be mentioned in front of the citation.
5. Statement of Jurisdiction
It is important to choose the right jurisdiction under which the case has been presented before the court and it is the most asked question by the judges. If the court does not have the jurisdiction to take up the case, there shall be no acceptance of it. It just forms a paragraph stating which jurisdiction has the counsel invoked to bring the case to the court’s notice.
6. Statement of Facts
It is a summary of the moot proposition. It should be brief and not more than two pages long. The relevant facts out of all the facts mentioned in the proposition find their place here. One must not assume the existence of facts and only use the facts provided. The parties could also, only mention those facts which support their cases.
7. Statement of Issues
This is an introductory chapter to the issues that shall be argued upon. They are single sentences asking questions. It should start with ‘whether’ and be concise in telling what issue is going to be dealt with. It could also contain sub-headings, in case they have been used in the arguments advanced.
8. Summary of Arguments
It is a brief summary of the arguments advanced. It helps in providing the gist of the arguments.
9. Arguments Advanced
This is the most important part of the memorial and will reflect the amount of research one has conducted. It is not necessary to include everything one finds related to the case, though, one has to cite all the legal books, case laws, commentaries, etc. It should concentrate on the theme, be cogent, clear and express the intention of the counsel.
The issues at hand could have further subheadings to justify the information and make it readable. If there are two speakers on the team, issues have to be divided amongst them. One can also keep ready bare acts, commentaries, judgements as separate hard copies with the researcher to bring to judge’s notice, whenever required. One can also employ principles of natural justice to strengthen the arguments but one should never assume any fact not provided in the proposition.
The cases so cited should be as such that they have been decided by a court superior to the one before which the case is brought to. Even foreign case laws can find mention in this chapter if they are appropriate to the case.
This is the last part of the memorial and contains the reliefs demanded by the counsel. It should contain space for counsel’s signature.
More than one relief can be claimed; it should be clear and justify the case and the arguments.
Oral submission is when the teams actually argue in front of the judges. The arguments are the same as those that have been written in the memorial. Students should conduct themselves properly, as per the advocates’ act and at no point should answer back or be rude to the judges. The tone of argument should be formal and persuasive and presentation should be confident and convincing. – Click Here to Read about Oral Pleadings
The whole memorial has its base in research. If the research is done well, there shall be no problem in the making of the memorial. Oral submissions can be practised to improve speech; the speaker should be well versed with the memorial and should reply respectfully and wittingly if an adverse question is put up.
A moot court, indeed, prepares a student for litigation and is of a cooperative, as well as, of a competitive nature. Though, fake but it gets as close as it could to an actual courtroom. This practical-oriented activity also helps in deciding whether one should aim for being an advocate. What is said for every case can be said for every moot court, ‘each is unique.’
By – Mayank Shekhar, CEO Legal Bites
Contributed By – Udit Dwivedi (Babu Banarasi Das University)
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