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Moot Courts and Mooting

Introduction

Introduction
MURALI NEELAKANTAN
(Judge, India Rounds, Jessup International Moot Court Competition)
In recent years, law schools have been placing a lot of emphasis on moot courts. Find
out the reasons below.
Why are moot courts important?
■ Moot court competitions give a peek into life as a lawyer
Moot courts give law students a chance to get as close to real life lawyering as possible
before one becomes a lawyer. This is the only chance that a law student gets to feel
what it means to be an advocate — to learn real life skills and practice them every day
for a few years such that these skills become a part of one’s character in preparation
for life as an advocate. Mooters get to observe how the world works, research
cooperatively with a team to be able to understand the moot problem, explain legal
arguments to a judge in a way that is persuasive and to keep an open mind for the
views of opponents.
■ Moot courts help students explore the complexities of law
The law is complex and there is always more to explore. Facts in real life are not all
black and white and there is always two sides to any case or a story. Experienced
advocates understand this and as they explore the facts and the law, they are able to
make a persuasive case for their clients.
What are the features of a good moot problem?
■ Tips for organisers: Moot problem should be contemporary and factual
Good moot court problems are based on facts that are contemporary and test the
mooters’ understanding of the world around us today. Being able to explain the facts
and the context in which they exist not only requires a deep understanding of those
facts but also a broad understanding of the world around us. That training has to be a
part of one’s life in law school rather than an ad hoc research topic for a particular
moot court problem. For example, at the 2016 NUJS Herbert Smith National Corporate
Law Moot Court Competition, the problem was based on angel funding of a start up, a
topic that should be of interest to every student. Being unable to understand the
different perspectives of the founders and the investors would be fatal to the mooters
who may miss the relevance of several facts in the problem and the applicable law.
■ Tips for organisers: Moot problem should be well balanced
A good moot court problem should be well balanced allowing both sides the
opportunity to persuade the judges of their case. Most of the great legal cases have
posed a similar challenge to lawyers and judges — both sides have a fair chance of
winning. The winning side may well have benefited from the manner in which facts
and law have been interpreted by the judges. On many occasions, the decision is split,
demonstrating how difficult it was for the judges to agree on the outcome.
How to crack the moot problem?
Find below tips and tricks to crack the moot problem and undertake research on it!
■ Master the moot problem
A complete mastery of the facts in the moot court problem is critical to winning the
competition. Good moot court problems are drafted in such a way that almost every
word has a reason to be there, and good mooters will use every word of the problem to
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give context to their version of events or their propositions of law. At the end of the
research when one has finished drafting the memorial, every fact and word in the
moot court problem finds a place in the explanation of the events.
■ Mind the “red herrings”
Occasionally, a few lines may be thrown into the facts just as a “red herring”. Too
many mooters have been unable to pick these and while expecting to see them, have
wrongly assumed some very relevant facts to be red herrings.
Mooters, like all of us, believe they know the facts well when they have read the
problem a few times. Unfortunately, facts assume significance as we research them
and unless the moot problem is read every day as the research progresses, one is
likely to be caught out either while the memorials are being evaluated or in the oral
rounds. Having no explanation for facts is inexcusable. After all, a vast majority of
cases are won or lost in court on facts. It is a good idea to list the significant facts as
one goes through one’s research and track how the relevance of facts emerges as
research progresses — a task for the end of every day during preparation.
■ Researching the moot problem: Read full judgments
Looking for case law precedent would be futile given that the Supreme Court is
unlikely to have ruled on a similar set of facts. However, practiced and experienced
researchers would be able to identify the legal issues and the cases that would be
relevant. A recent trend that I and many others like me who judge moot courts have
noticed is that good research tools like SCC Online® are narrowing the focus of the
search and as a result, the breadth of understanding of the case and the law is
missing. Reading seems to be focused on the few highlighted sentences or paragraphs
at best, of a case. Therefore, use the research tool to find the cases, but also read the
full text of the judgments to understand how they are relevant to your case
arguments.
At the 2015 RMLNLU SCC Online® Media Law Moot Court Competition one team did not
know the facts of Olga Tellis v. Bombay Municipal Corpn.1 a case that was cited and
everyone is expected to know. Apart from stating that it was an authority for the
guarantee of the fundamental right to life and liberty, a sentence which has been
quoted ad nauseum in every textbook and paper on Article 21 of the Constitution,
there was no ability to relate the facts to the proposition in that case and how the case
that they were arguing was similar or analogous. Not knowing who Olga Tellis was or
what was the outcome of the case, undermined all the research for the petitioners. The
case could well be used by the State for the proposition that the famous statement
was mere obiter since no relief was granted to the petitioners in that case and that
proposition was not material to the outcome and relief.
■ Study the High Court judgment of a cited Supreme Court judgment
Mooters should read carefully the impugned High Court decision while using the
Supreme Court judgments as binding precedent. This is easy to access today, unlike
when I was mooting, since all decisions of the High Courts are available on the High
Court website and in online databases such as SCC Online®. In fact, SCC Online®
actually has a hyperlink to the impugned High Court decision. The extent of appeal
usually means that the Supreme Court judgment is limited to a few questions of law
and only an abridged description of the facts is available. Several issues, legal
propositions and arguments that were raised in the High Court may have been given
up or otherwise not have been addressed in the decision of the Supreme Court —
perhaps those legal issues didn’t need to be addressed to decide the case. That
material in the impugned High Court judgment may well help explain the decision of
the Supreme Court and limit or expand on what the Supreme Court may have said,
give colour to the facts before the Supreme Court or even disclose facts that were not
summarised by the judges in the Supreme Court judgment. All these will be relevant
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while using the Supreme Court decision as an authority for or against a legal
proposition. Being able to distinguish cases on facts is a skill worth investing in and is
particularly useful in impressing the judges in the oral rounds.
■ Refer to foreign cases and academic material
I would strongly encourage mooters to look beyond the jurisdiction of the moot court
problem for similar issues that may have been addressed or at the very least
contemplated in other countries. This definitely gives a variety of perspectives on the
problem. Often, academic works on these issues will help mooters formulate the
propositions better. With the Indian Supreme Court being more open than before (See
for example, the judgment of R.F. Nariman J in Shreya Singhal v. Union of India2 ) to
considering jurisprudence from the rest of the world, the opportunity exists to be more
open minded about thinking about the issues that can be presented to the court.
How to draft the memorial?
Find below tips to win the best memorial!
■ Work on the memorials everyday
While evaluating moot court memorials I have felt that there was not a lot of time
spent on it. It almost seemed like the teams believe that they can win the moot court
even if the memorial was not the best. I believe that it would be a good idea to draft
the moot memorial at the end of every day of the preparation. The benefit of this is
that the team is able to quickly work out how well each proposition is developing, and
what more needs to be researched. Leaving the drafting for the end makes it difficult
to address questions and issues completely, resulting in the memorial looking
unfinished. Perhaps it is to address this issue that some moot court organisers
eliminate teams based on the memorials, a welcome step that I hope more organisers
will consider. Many judges will not allow advocates to go beyond what is pleaded in
the petition and applications filed in court, and there is therefore a premium on quality
of pleadings. Memorials which have not been thoroughly proofread will, despite being
well researched, score poorly and make a very poor impression on judges, in the same
way as a poorly turned out mooter during the oral rounds. This may seem like form
winning over substance, but it is preparation for life in the real world where being tidy
and showing attention to detail is critical for young lawyers.
■ Address all issues in the memorial — even those which support the opposition
A good advocate will use all the research available, not just the cases that support his
case. Failing to address issues, opinions and cases that the judges would consider to
support the opposition is relying on the incompetence of the judges and the
opposition. In real life, as in good moot court competitions, lawyers on both sides and
judges will be equally competent and well prepared on all aspects of the case.
Ignoring the opposition’s view is poor advocacy and will come across as either
arrogance or incompetence.
In preparing for life as an officer of the court, every law student should be aware of all
the law on the issues relevant to the moot court. In the case of international law there
may not be, like with municipal law problems, binding authorities or precedents and
mooters have the opportunity to explore the law. The best memorial for the Philip C.
Jessup International Law Moot Court Competition is one which addresses all the issues
in their entirety and judges have little to do but adopt it as their judgment on the
problem.
How to prepare for oral rounds?
Oral rounds are probably the most glamorised as well as the most dreaded part of the
competition. Find tips below to prepare for it!
■ Present elegantly
Repeating verbatim what is in the memorial is boring and unlikely to impress the
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judges. The oral rounds present mooters an opportunity to embellish their memorials.
Mooting is not an elocution contest and mere eloquence is usually insufficient to win a
moot court competition, although it helps to make the point elegantly. Elegance can
be learnt and gets better with practice — read elegant writing, often outside the law,
practice writing and speaking elegantly and also make elegance a part of one’s
personality. It is very difficult to fake elegance — therefore those who invest in it and
practice it will be rewarded. Clarity of speech reflects the preparation and thought
invested in it. Long winded sentences are difficult for judges to follow and are easily
misunderstood. Good mooters will always present their propositions in short, clear
sentences and seize the advantage of laying down the rules of the game.
■ Prepare a mind map
While all the effort in writing a great memorial should not go to waste, a good way of
preparing for the oral rounds is to write out every issue and fact on sheets of paper
and lay them out on the floor in an order that one will remember as a picture. Then
practice to start at any one page (fact or legal proposition) and find your way to the
end without missing any significant issue. This should prepare the mooter for all
possible questions and situations where judges go “off-piste”, but the mooter is able
to remain composed knowing that there is a clear and well rehearsed path which
includes both the facts and issues that the judges wish to focus on and the
propositions and authorities that the mooter wishes to present.
■ Prepare yourself on all the issues — not just your own
Every mooter should prepare to address the Bench on the whole memorial, not just
your two issues. The modern trend of only preparing for what one is arguing and being
completely ignorant of your teammate’s propositions is worrying. This highlights poor
team work since all the issues will be linked to the same set of facts. Knowing the
whole of the memorial that one is arguing and the memorial for the other side
(especially important in moots like the Philip C. Jessup International Law Moot Court
Competition where teams prepare for just one side — either the claimant or
respondent) is important so that each mooter can help the other with addressing the
questions from the Bench. Deflecting questions from the Bench with “my colleague will
deal with that” is seen as a sign of incompetence. Judges are looking for cohesive
arguments that are consistent with the facts and propositions of law being cited and
argued.
■ Deal with opponent’s case, but briefly
While the petitioners, claimants or appellants get the chance to go first and lay the
ground for the case, the respondents get a chance to gauge the Bench better. There is
a risk that the respondents are so keen to rebut the arguments of the claimants that
they miss out on all their own research and the manner in which they view the facts
and the legal propositions they seek to propound. Very often they seem to be dragged
into arguing the propositions stated by the claimants rather than putting forth their
own propositions. While one should definitely not ignore the propositions and
arguments of their opponents, there needs to be a tactical awareness of how much
time to devote to them. I would advise mooters to try to deal with the opponent’s case
as briefly as possible, perhaps with a precedent or binding authority but only after
they have stated their propositions and arguments.
■ Tips for organisers: Train the judges
As in real life, moot court judges are not a uniform bunch of people. Especially with
the diversity in the composition of the Bench these days, mooters have a tough time
gauging the “style” and expectations of the Bench before whom they are presenting
their case. Moot court judges could be serving or retired judicial officers, advocates, in-
house counsel or academics. Many may have mooted but it is possible, especially with
retired or senior judicial officers that they have not and may not have had much
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experience of judging moots. The onus is on the organisers of moot courts to brief the
judges not only on the memorial but also on the basics of mooting. I have been a
judge in a moot court where a fellow judge was marking on the strength of the facts
and law of one side of the case, something which is entirely beyond the control of the
teams.
■ Tips for organisers: Composition of judges
Very often mooters are too quick to judge the judges and I have heard comments that
a judge was very “harsh” or “tough” because he asked questions whereas others were
“easy” when they remained quiet listeners. My own personal view is that a Bench
should have a mix of personalities but should make sure that the mooters get
sufficient airtime to present their case. There have been too many instances where
judges speak for almost as much time, if not more than the mooters themselves.
Organisers need to, as clearly as possible, make it clear to the judges that moot courts
were not designed for judges to be the stars of the show.
■ Assess/gauge the judges
Mooters should be able to tell which of the judges is well prepared, and which of them
is not, which of them is a listener and which of them is likely to engage in discussion
or questioning. Experienced mooters and advocates will be able to sense the
personality of the Bench and of each of the judges. Ignoring the quiet judges and
addressing just the ones who actively engage with the mooters is a trap into which too
many mooters fall. Many senior judges, especially judicial officers, may ask questions
that may seem too far from the facts but they may well be testing the mooters on the
strength of their legal propositions and the ability to apply those propositions in
diverse situations.
Making eye contact with all the judges and sensing their body language will go a long
way in scoring points with the quiet judges. Occasionally, humour may get a positive
response too.
■ Keep a pleasant demeanour/maintain court’s dignity
As with real life situations that lawyers face, those who are affable are more likely to
succeed. While not all mooters may be able to use humour while dealing with judges,
those who can use it effectively are likely to score well. Engaging in heated arguments
with those judges who are keen to question mooters is not advisable. Mooters should
answer questions in brief sentences and use specific authorities and references to the
memorial wherever possible. This will help them score points with all the judges for
knowledge of law and use of authorities. Engaging in heated arguments with judges
just shows poor temperament and will cost points for poise and court craft. Similarly,
points will be lost if mooters cannot stay stoic while their opponents are on their legs.
Good mooters will look calm and composed while their opponents are arguing.
Respecting one’s opponents and using the opportunity to make notes is all that one is
expected to do. Chatting with one’s colleagues, making sharp remarks or other
disrespectful behaviour will be noticed by the Bench and will cost points for poise and
court craft.
Are moot court competitions only for those who are looking for a career in
advocacy? Are they making law students more knowledgeable about the law?
Are moot courts delivering on the purpose for which they were introduced? Find
answers below!
■ Mooting is for everyone — not just aspiring advocates
Moot courts provide an excellent opportunity for students to prepare for life as a
lawyer. From being initially viewed as extra-curricular activity, moot courts have now
become mainstream events at every law school in India. Everyone should try mooting
even if they believe that they will never have a career as advocates in court. Many
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successful mooters have gone on to have careers in academics and the corporate
world. Mooting definitely helps those who seek careers in the corporate world — after
all negotiating a deal is nothing more than persuasion. The best negotiators are those
who can persuade, not browbeat others and arguments in court are often won or lost
on the basis of who crafts the proposition which everyone agrees is the crux of the
issue.
■ Acquire in-depth knowledge of law
While the law school curriculum attempts to give the students a wide range of
subjects, it is almost impossible for the curriculum to deal with all aspects of the law
in any great detail. Apart from research papers that some courses may require of
students, moot courts are really the only occasion when students can get to the depth
of the issues in a fact situation. Moot courts are a wonderful opportunity not only to
hone one’s skills in research, drafting and advocacy, they present unique problems
which test one’s knowledge of the law.
■ Don’t miss opportunity to moot!
With so many law schools and colleges, almost everyone who wants to moot gets an
opportunity to do so — a far cry from 20 years ago when there were very few
opportunities. Too many moot courts, every law school of which there are over a
hundred, organises one, means that the quality of both the moot court problems and
the teams participating is a challenge. On the flip side, everyone who wants to moot
gets the opportunity. I have noticed that even first year students who have had less
than a year’s exposure to the law participate in moot courts and I fear that the result
may scare them away from mooting.
My advice to them would be to keep mooting — almost everything deserves a chance;
maybe two just to be sure.
———
1.
(1985) 3 SCC 545.
2. (2015) 5 SCC 1: (2015) 2 SCC (Cri) 449.

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