Mooting and Moot Court
What exactly is mooting?
A simple question, but it is surprising how many in the legal world, as well as outside it, have no idea what a mooting competition is.
In a moot, two pairs of ‘advocates’ argue a fictitious legal appeal case in front of a ‘judge’ (normally the instructor).
Mooting is a useful supplement to a law degree, and many universities and colleges make it a compulsory part of law courses, but it is also possible, and very beneficial, for non-lawyers to moot. Very little knowledge of law is required, but it is useful to know the legal principles which apply to the issue in the moot.
In-Class Moot FAQ
Below are some of the frequent questions I receive from students regarding the presentation. Its contents will grow as I get more questions.
- The Facts of the Case – After having read your summary of the facts, that you posted on the website, I compared these to the facts given in the majority opinion. The majority opinion at one point lays emphasis on things that were not contained in your summary. So which one of the facts are binding for our moot court? ANSWER: The court opinions set forth the full facts. My summary of the facts was just that, a summary.
- How to Mention a Case – If we refer or even quote a phrase from another case (e.g. Engel v. Vitale), how are we supposed to do that? ANSWER: There are several ways to do this: “As the Court states in Engel v. Vitale” or “As the Engel Court stated” or “as was set forth in Engle” and so on.
- Citing Resources in Your Argument – Do we always have to say “as it was shown or argued in Engel v. Vitale” explicitly? Or can we also use some of the arguments from these case without explicitly referring to them and merely use references to the cases if we distinguish or show similarities to the current one? ANSWER: In oral arguments there is no rule that you have to cite your sources. However, reminding the Court that you are citing a rule that they made is always more persuasive.
- How to Cite a Case – And if we make references to other cases or use quotations in our Brief, is it enough to quote the case in general or do we need to write down the report and the page on which one can find the information too? ANSWER: Your brief for this exercise is very informal. You do NOT need to cite your sources, although again noting that you are quoting a rule made by the Supreme Court may help with the persuasion. The purpose of the brief is solely to allow your fellow classmates to better understand your argument. Nothing more.
- Writing the Brief – Should the brief be written in a neutral way, so that arguments of both sides are shown equally? ANSWER: No. Only outline or highlight your own arguments.
- How the Roadmap Fits Into the Introduction – I have got a question that concerns the structure of our presentation on Thursday. My co-counsel and I will present the respondent. As I will start, I will introduce the both of us and our client. Then I will summarize both our issues and afterwards move to the Statement of the Case. This is clear to me. I am not sure about the next part: the roadmap. I know you said that we present two or three issues there. But, do I present the two or three issues both of us are dealing with or do I present my two or three issues? ANSWER: If you are the first counsel, you give a brief overview of both arguments, e.g. “I will be discussing the Lemon Test and my counsel will discuss whether the prayer in question amounts to coercion” or something like that. Then you move to your issue and the two or three main points supporting it. For example: “A prayer given at a high school graduation by a member of the clergy invited in by the school district violates the Establishment Clause under the well established Lemon Test for the following two reasons: First, a religious prayer can have no other purpose than a religious one, and second, a reasonable person, upon hearing this prayer, would clearly believe that the state is endorsing a particular religion.” When your partner delivers her opening, she will also give a more detailed summary of the issue she will be covering followed by the two or three main points supporting her position. This is her roadmap.
- Which Team Goes First? Which team begins the moot? ANSWER: Always the Petitioner/Appellant
- Reacting to Arguments Made by Other Team – Should the second team react to the arguments of the first team or should the second team only try to deal with the Justice’s questions during the first discussion? ANSWER: The second team does not need to react to the first team. It was just a suggestion. You have your own main arguments, and those should be the basis for your moot.
- Final Exam Article – Will the article for the final exam only cover the cases and the topic we prepare for the moot? ANSWER: The article you will use on Saturday will relate in some way to prayer or religion in school. You can likely enhance your discussion by supporting your arguments with the knowledge you gained during your moot. Thus, being able to draw analogies to cases about which you learned will always score you points, provided, of course, that you understand and use the cases properly.
- Graded on the Brief? Do we get graded on the brief? ANSWER: No. It is only there to help your fellow students deliberate over your case when they are asked to decide at the end of your presentation who won on the legal merits.
- Summarizing Facts of Precedent – Whenever we use a precedent, are we supposed to state the facts of that case first, or can we just get right to our argument involving for instance only a special fact or the principle of that precedent? ANSWER – This is up to you. If you plan on drawing an analogy to the case or distinguishing it, perhaps giving a very brief description of the case would be a good idea. But there is no hard and fast rule to this. Sometimes it is absolutely appropriate to just mention the case as clearly the judges already know what the prior case was about.
Videos shown in class during the Mooting lecture can be found at:
- The LawBore Video Guide to Mooting
- These videos are on a password protected site: username=ffa; password=commonlaw
Additional Information on Mooting and Moot Court can be found at: