This was originally published in Gyancentral.com in 2012, and now being republished here. Copyright belongs to Ramanuj Mukherjee.

The biggest mistakes that mooters make

As mentioned in my last week’s column, I was recently at the Indian pre-moot of the Willem C. Vis moots as a judge. I had promised in that column that I will share my extensive notes on the common mistakes made by mooters in general.

While mooting, it is quite difficult to understand what the judge is actually thinking, or experiencing as you proceed. However, as should be obvious, your key to doing well in the moot is in the mind of the judges. Often a judge has very different perspectives and priorities with respect to mooting as compared to the mooters themselves. Being aware of these priorities and perspectives can help you a great deal in mooting.

If you have ever mooted in your life, I don’t think I need to convince you any more about this. Without further ado, let me share with you some of the mistakes I saw in court after court, as otherwise intelligent and well prepared speakers massacred their chances of winning the court by making these mistakes.

Failing to give a roadmap

The judge doesn’t know what you are going to argue. As you go on speaking – he may not be able to follow the thread of your arguments. The best mooters inevitably present a roadmap at the beginning. They tell the judge how they are going to issue a certain issue – by breaking down the issue into elements. Debaters will be very familiar with this concept of a roadmap – but this is probably even more important in moots. You should give a roadmap of your entire speech, and then as you deal with each issue – you should again provide a roadmap. When you are done arguing, you should ideally again touch on the roadmap saying that you have argued so and so, thereby proving so and so.

Let me give you an example. Lets say you are arguing that the opponent was negligent in their conduct. You could say that

“My Lord, the defendant has been negligent in their conduct. Firstly, they forgot to wake up my client in the morning. I would argue that, one, this was breach of their contractual duty under Clause 15 of the contract, and two, that this was negligence under the laws of Schwaziland even in absence of any contractual duty. Now coming to the first leg of that argument, that the defendant had a contractual duty to wake up my client, I’d like to point out that …. ”

Giving a roadmap to the judge in this way helps him or her to follow your arguments. The more you do it, more likely that your arguments will be understood. If you fail to give a roadmap – that itself may be the end of your chances to win.

Answer questions directly

In any moot you’ll be asked questions. Sometimes judges want a question in affirmative or negative. Do not worry, just provide the answer the judge wants. Many speakers get defensive when asked a question and tries to be non-committal in their answer. Some folks even try to circumvent or avoid giving a direct answer to a question. This is terrible, the judge is going to hate you if you do that. If you think you know the answer – provide it. If you don’t know, admit it and apologise. Anything else is suicidal. Only a direct answer must be given. Never even risk sounding evasive.

Also, many speakers give the justifications before coming to the real answer. This amounts to testing the patience of the judge. Give the answer first, and then go on to justify it. If I say “Counsel, who woke up the claimants from sleep?” You just say the name of the person who did so. Maybe this fact weakens your argument, but that is no justification for not answering my question immediately and directly. Answer the question fair and square and then explain away the fact if you can do so. However, some speakers, instead of giving the answer, will start defending their position right away. This does not help at all. The rule is – first you clearly state you position in one sentence, and only then you go on to the reasons and justifications of why you assumed that position.

To be honest, this was a long standing problem with my communication style – that I didn’t answer questions directly, but went on to explain my answer before actually coming to it. I’d show the reasoning first, and then state my answer. This is the worst way of answering a question, and thankfully I learnt this while I was mooting. A large number of speakers suffer from this – mooting is your chance to cure this problem.

Stick to your gun

If you have decided to take a position, researched on it, and have enough reasons to support it, and finally you have blurted it out in the court – do not change it when I start questioning it. At least half a dozen speakers did this at the moot – when they would face tough questions, they would quickly shift their position and argue something else. Judges notice this, and hold it against you. If you have taken a stance, stand by it – even if it is trounced. If you are changing your stance, do it fairly – acknowledge that you are giving up that argument, move on to your next argument or next issue – do not try to pretend that you never argued it in the first place. Don’t try to distance yourself from the argument by being vague and ambiguous. It is quite obvious when you do that.

Sometimes, a speaker would argue the correct position of law, and when the judges will ask you some questions he would do an about turn. This is embarrassing for everyone, and shows tremendous lack of confidence.

Taking too much time to tackle real issues

Some of the teams in every moot displays surprising lack of understanding of priorities. Every moot problem has some real meaty issues, and some issues which are just peripheral. As a mooter, you have to argue everything, but come to the real meaty issues quickly. Do not waste your time arguing frivolities – which many mooters tend to do. Even when it comes to arguments – there are better ones and there are weak ones. Argue your strongest issues – no one has time to argue everything. Come to the strongest arguments in the biggest issues quickly – these are the issues which will decide if you are a winner.

In many courts, you’ll not be able to argue every issue. Sometimes all you get to argue is one argument as the judges start asking questions aggressively. Hence, be choosy about what you start to argue. Do not argue your weak arguments at all. Your innovative arguments are often best used in response to questions. Think well about the priority of issues and arguments.

Repetition

Do not repeat what you have already said unless it is necessary. Mooters who keep harping on the same facts too many times, or keeps going back to one argument again and again makes a judge frustrated. Repeat only when asked. Repeat also when you want to reinforce an argument, but do it very carefully. Your repetitions must not become too many and too boring. Anyway the time is less – use it to say something new.

My mooting mistakes: speaking round mistakes that you should never make

My mooting mistakes stopped for a while because I gave up mooting for a long time after my mooting efforts were severely disappointed in my 2nd year of college.  And of course, a big reason for these mistakes was that there was no systematic way of learning about how to avoid these mistakes. I was going to go through some major changes in my attitude and approach towards in my work in my 3rd year of law school, which will make mooting easier later on.

Not understanding what mooting is all about

What is a court all about? A lawyer stands before the judges, persuades the judge by showing that law is on his side and that his client deserves to win.  What matters most is whether you win the case for your client – proving or disproving one single point can clinch the case for you. Arguing the other points may not be so important then.

But that is not how moot courts work. Moot court is not about winning the case for you hypothetical client at all. It’s about displaying your skills before the judges. Even if you are unable to defend your hypothetical client in terms of law and arguments, you can win. You are awarded marks on basis of display of your knowledge, research, and most importantly, your ability to speak eloquently and somewhat rarely your ability to think on your feet. You are also judged on your ability to act and speak like a lawyer in court – mostly by addressing the court in the correct way.

It’s not just about arguments and legal knowledge

This is something which took me a long time to understand. You don’t win a moot court just by putting forward strong arguments. You need to play the part – that’s how it starts. You get the attention of judges, you please them, entertain them, surprise them, make them alert and curious – and that makes you win. It’s a mix of knowledge of law, masterful personal interaction and showmanship, effortless eloquence or an appealing style of speaking (think of a very good policy debater who is also very respectful) that makes one win moot courts.

When I worked on my first moot problem in NUJS intra-university selections, and I was speaking – there was this one point which was crucial to my arguments. So when the judges were ostensibly not agreeing with it, I kept arguing with them, trying to pursue – which didn’t work at all. They had heard and understood my argument, all that I was required to do was move on and argue the other issues. As I was thinking the moot court to be like a real court, I was like – “oh, if they are refusing to accept this point then I have no hope of winning this court! What is the point of arguing the next point now? I need to make them understand this one first.”

I focussed only on the legal knowledge and arguments part, and always failed to understand the importance of rest of the aspects. It didn’t work out for me and I felt that the whole system is arbitrary and random, when in reality the parameters I thought are relevant and the judges were judging me on were entirely different. This happened twice – once in my 2nd-year intra in NUJS, and once more when I was representing NUJS in a criminal advocacy moot in Cochin. In the second instance, not just me but the entire team got it wrong.

Funnily enough, more moot courts are decided not on basis of knowledge of law, but on the basis of which team sounds more “impressive”. Judges may not know the law you are arguing at all, in fact, that is most often the case – the judges did not research on those points of law for weeks, you did. If your opponents argue something wrong, judges may not be able to tell they are wrong. But the judges can always tell who is a confident, humble, persuasive speaker in all circumstances, and such a speaker will almost inevitably win.

If they lose a court, a lot of mooters tend to take refuge in the fact that the problem was one-sided (in favour of the opponent) and the judges did not appreciate the fact that a team was trying ‘harder’ to establish their case. It is very important to know that problems can very well be one-sided. Real life problems are often one-sided. The framers of the moot problem have no responsibility to ensure that the problem is a balanced one. Judges do not pay any importance to whether a problem is balanced. It is the job of a good lawyer to ‘present’ or ‘establish’ that the case is in his favour.

Hostile moot court judges

Hostile moot court judges who pretend to be unreasonable are quite common in Indian moots (and not at all in the international moots I have seen or heard about), especially in college internal selection rounds. Expect it. In most moots, you shall face nice and reasonable judges who are senior lawyers or judges from various courts, who would not go out of their way to make your life difficult. However, expect exactly that if the judge is a recent graduate or still a student. When a judge is being hostile, all you need to do is stay very calm, respond to him with great empathy and a lot of respect, without actually getting intimidated.

Persuade, don’t demand

Until now you have learnt to think in this way: This is my right. I am entitled to it. If I am refused, I am going to have my day in court. I shall go and claim it – show them how wrong the other party is and collect my dues. Well, the real court system doesn’t work like that. And the moot court is totally antithesis to this kind of an idea of justice you may have in your mind. Like I said earlier, it is anyway not about winning the case for your hypothetical client. You are supposed to persuade the judges, and not supposed to throw a rule, provision or a judgment and expect them to say “Yes counsel, we are bound by this, now what do we need to do?” It doesn’t matter whether they accept or don’t accept it anyway – all you need to do is be persuasive, give them your reasons and law, and communicate them effectively.

In the back of my mind, I was expecting judges to accept my submissions when I argued something which is clear and correct law. That is not how moot courts work. Once you have argued something, and you know the judges understood what you are saying, answer any questions coming your way and move on to the next issue as soon as possible.

In internal selection rounds for university teams, you may find some judges who repeatedly fire questions at you. They may be satisfied (or even impressed) if you answer tricky questions, and you will get a feeling that you can move on to the other points you have to make after answering those questions. However, in national and international moot courts, the manner in which you present your argument and your flow is very important. It is very important to carry your argument through. A basic structure you can follow is to a) begin with the two or three relevant facts in the problem that cause you to make the argument, b) make your assertion in one or two lines, c) explain the legal reasoning behind your assertion with supporting case law, and d) conclude/summarize your argument. If, in the process, you are interrupted by questions from judges, answer them and then get back to the above pattern.

Later on, I found a way to get around this problem: shock and awe. The judges are hearing the same arguments from team after team for hours. If you want the judge to be receptive and open to what you are saying, you better have something new to say. If you want the judges to sit up in their chair and listen to you with rapt attention, and accept – you need to shock and awe them. For this, you need to use law/ industry information or any practical information that has a huge implication on the case at hand, but judges are unlikely to know. Sometimes it can be a new approach to problems at hand too. If you are continuously trying to find material on a particular issue to establish your argument but you feel that you are hitting a wall, you could try tweaking your argument. That may lead you on to try a new/ unconventional argument.

For example, in one of my internal selections, we had an international law problem, where we were required to argue before the International Court of Justice against a decision of the United Nations Security Council. Most students were trying to argue on whether the ICJ had the power of judicial review over a Security Council decision. However, this was a tricky argument – although prior cases of the ICJ discussed the issue, they did not lay down a clear stance of the ICJ on the point. So, I tried to go deeper into the meaning of the SC resolution. I looked into some of the prior resolutions of the Security Council and argued that the SC had actually intended its resolution to be interpreted in an entirely different way (because the resolution was issued with respect to a specific issue at hand with the Security Council). I could easily establish this by going into the history of the SC resolutions. When I argued in this manner, I could easily avoid the argument on the tricky issues of whether the ICJ had powers of judicial review over a Security Council decision. The judges were very impressed, and one of them (who had framed the problem) also congratulated me during his feedback, stating that he had originally expected the problem to be argued in that manner when he had framed it. The point is that if the judges have not heard anything like it till now, they don’t know how to reject it or challenge it. This is how you turn the table – now the judge needs to think on his feet. By the time he will think of the weaknesses of your argument, you’ll probably wrap up your arguments and he’ll be left very impressed overall.  

Not carrying text of authorities I am relying on

This was the costliest mistake ever. Carry the bare acts, and every authority you are relying on to the court. Judges will pretend that they know nothing. Sometimes they don’t even have to pretend. Especially if you are arguing something counter-intuitive (something that may shock and awe, as I mentioned above), you must be able to establish it with valid authority then and there in the court room. Also, there’s a simple magic in supplying documents to the bench judging you – you start controlling how the court proceeds – you control the frame of interactions. In the best courts, you’ll be leading the interaction, and judges will react. Hostile or dominating judges will try to seize control from you; they will try to make you uncomfortable and unnerved, especially in intra-university rounds. A great way to prevent them from doing that is to take them out of familiar zone, give them documents they need to look at and think through – and mind that they don’t have time to read it, so you’ll tell them what it is about. You can have certain portions highlighted so that they can easily confirm what you are saying.

I made this mistake in my first ever moot court. I had this amazing argument – that was counterintuitive – the gist was that in divorce cases the standard of proof should be beyond reasonable doubt. I had Supreme Court judgments which stated so, but in later cases, smaller benches deviated from that. In any case, there was good scope to argue that the correct law is the standard applied by bigger benches since smaller benches could not overrule them. I even had articles from renowned jurists on this issue supporting my arguments, but I didn’t think it necessary to carry any of that to the court – since I had quoted relevant paragraphs in my memo and cited the judgments! Of course, the judges had not heard of this before I brought it up – while two judges were willing to listen, one of them was a know-it-all who couldn’t accept that there can be any law that he didn’t know. The result of this was that he thought I am misleading the court, refused to listen to me any further and threw me out of the court. A total disaster, for which I had only myself to blame. Lesson learnt is that for everything you say in court, you must be able to back them up with authority right there. I did this later on when I mooted again, with great results.

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