Speaking for Moots – Part I

The practice of Mooting in Indian Law Schools is currently seen as a glorified sport.  Some attach academic importance to it; while Senior Advocates, Partners etc. state sometimes that Mooting does not have any bearing to the practice of Law in the real world. The ideal situation would be when you see it as a process of Skill Development.

There are three major things mooting involves: formulation of logical arguments, backing the same by pointing out previous practice in that regard, presentation of arguments and lastly but most importantly resolving the conflict satisfactorily for both parties, if possible.

In this Post we discuss Speaking for a Moot. It is an advanced discussion. It presumes that the reader knows the basic format, and the jargon related to Mooting. It will give you a list of things to do, and help you understand the difference between a Mooter and a Good Mooter. We will do broader posts on general concepts of Mooting in some time.

1. What to know and how to appear: I heard this anecdote which I have told everyone who has ever sought help in some form while speaking in a Moot:

“A guy has to appear for an examination where he needs to write an essay. He prepares by learning an essay on “The Cow”. Once he reaches the examination hall he finds out that the essay given for the test is “The Alligator”. He is in a fix but still sits down to give the test.

He thinks for sometime and writes, “An Alligator is a creature that lives in water. It is big……and scary…

And sometimes…..it comes out of the water and attacks a Cow….

A Cow is an animal with four legs, two horns and a tail. It gives us milk. It is referred to as Mother in India…..(and so on)”

The Lesson here is, he knew only about the cow hence he twisted the question and wrote about the Cow. He brought the question to his dominion of knowledge and expertise.

While speaking in a Moot, there will be hundreds of possible questions. Some find it helpful to prepare a list of questions in advance and to find out all possible solutions.The good speaker will gauge the Bench and allow them to ask questions only within his / her domain, and in case there is something else which you are not aware of, he / she will bring back the Bench back to the subject which you are aware of.

There can be no end to the type of questions that might be put forward before you. And in a subject like Law, it would not at all be advisable to play guessing games without proper authority on what you plan to say. Entire rounds have been wasted by Students who ended up saying something as un-informed as,” This is protected by the Basic Structure Doctrine…”. The stupidity of this statement is that it shifts the focus of the debate, and talks about a theory mostly undefined. Constraint your arguments, and refrain from making broad generalizations.

In Moots where time is limited, it is extremely important that while you satisfy the Bench, and continuously keep asking as to whether “The Hon’ble Bench is satisfied and has any queries in this regard”, you also realize the paucity of time, and drive to your proposed solution within that time.

Something that I observed in the American Moots is that in case they cannot finish the Arguments due to paucity of time, they ask the Bench to refer to the Written Submissions for the rest of the Arguments. In the South India Rounds Jessup, the Second Speaker for NLSIU (Raag Yadava) does not read out the Prayer. He simply asks the Bench to refer to the Written Submissions in that regard. It does not leave the Bench in limbo, and gives them a way to mark you, even when you did not complete your arguments.

2. The Bench: Gauging the Bench is possibly the most important work that a Speaker has. There will a Chief / President / Leader of the Bench who will lead the queries of the Bench. There will be a Member who will vehemently disagree with whatever you say, sometimes citing wrong Law in his support. And then there will be the lone Judge. How do you use this observation to your advantage.

If you are successful in making a point to the senior Member or the Leader of the Bench, the rest will agree as a matter of courtesy. This Senior Member is you principle target. He / She is the person you have to invest in. He / She is the person you have to have on your side, with a smile on their face.

My solution for the disagreeing Members is two words: Much obliged Your Lordship and Agreed Your Lordship.

The two words are not same, and serve two different purposes.

Much Obliged: All the time. They ask you a question, be obliged; They ask you to speak, be obliged; They ask you to stand on one leg, be obliged. Always think of the Moot Court as a real Court while proceedings, and you would not like to be the Courts contempt.

Even further, you would want a favorable judgement for your client. The other reason is, it saves you the ridiculous pauses when you think before giving an answer, and lastly it ensures smooth transition from one argument to another.

Agreed: Whenever the Judge says something you agree to say “Agreed your Lordship”. Whenever they say something that you vehemently dispute state, “Agreed your Lordship…..But…the Counsel would like to point out that…..”. You are never in disagreement with the Court. Because technically they cannot be wrong, and even if they are you do not reprimand them by disagreement. As Sir Humphrey Appleby  would have said, “It would be too bold Minister….”.

The purpose of agreed is to point out to the Court your solution to the problem, while not being in disagreement. So what the Judge says exists, but you say is a better option.

For the Judge constantly in disagreement, do not cut him / her short. They are doing it to test your conviction on your argument. Let them draw blood, but find out one simple point he / she do agree on. Use that point as the stepping stone and carry forward the argument. Let this judge waste your time, but do not under any circumstances let him / her speak for the entire round stating their convictions.

Lastly, for the lone Member on the Bench, who does not make a single comment during the round, do remember that this Judge has a scoring capability equal to his / her peers. Provide  him / her with your visual attention. Try and ask if they have queries. The results can be quite spectacular.

3. Give the Bench a Judgement: The only time I remember having cried during a Law Lecture was at SASTRA University, School of Law during a Lecture by Hon. Justice Prabha Sridevan.

She said, “People glorify the Judges who wrote Keshavananda Bharati…..in particular Justice H.R. Khanna….and rightfully so….But always remember….without a Palkhiwala there would have been no Keshavananda Bharati”.

The reason: Nani Palkhiwala gave the Bench the Judgement.

Always understand that any Judge on the Bench has to have arguments to support his or her final Judgement. When he / she declares that this is the Side we give it to, they will need arguments to back why they gave it to that particular side.

Stack your Arguments in a manner that in turn lead to a solution to the problem at hand, and convince them that your solution is the best possible one, and not necessarily unique. In fact it is better if it has been tried and tested before. All your legal knowledge and propositions fail if it does not resolve the problem at hand.

4. Objective speaking: In India there is a fascination for theatrics and unnecessary statements while speaking. Speakers abroad have a much more objective approach to their speech. It is crisp, and contains only what is necessary, without undue formality. The best place to learn objective speaking is the Supreme Court of the United States (SCOTUS) Recordings. You get audio recordings of proceedings with transcripts. Note how the Lawyer builds up his / her arguments on sheer logic rather than facts (which can be disputed).

Source: SCOTUS Website

5. Difference between the Written Submission and the Oral Arguments: If there is one thing a good Speaker does not do, it is repeating the same thing over from the contents of his / her Memorials. You have already made written submissions in that regard which will be seen by the Bench.

Your Oral arguments give you the scope to build a narrative, to answer queries and to point them out the final solution that is the prayer; the space that you do not get in written arguments for hyperbole where you make the Judge understand implications of the judgement on real world scenarios, discuss previous real world scenarios, development of Law, and trace the development of Law on that particular point and how it is applicable to your case.

Resources: The Philip C. Jessup Southern India Rounds Final (Courtesy: Surana & Surana Moots)- This is the India Rounds for the Year when NLSIU won the International Rounds of Jessup. Watch them speak. They are referring to the memorials very sparingly, and it exudes confidence. They address the issues mentioned in a very broad manner; something that would not be possible in the crisp written submissions.