A moot is approximately described as a mock appellate trial. It is a form of legal debate, usually practised by students wanting to go on to become advocates (barristers in England and Wales) but is also pursued by others who want to gain better public-speaking abilities, improve their legal knowledge, or just because they enjoy it. In my case it's a combination of the above. To put this writeup in context, I've been mooting for a couple of years whilst studying law at an undergraduate level at a Welsh university.
The English and Welsh1 bar is somewhat unique, the format of a moot does its best to emulate the procedures and formalities of a real court. shaogo informs me that in their final year, students at US law schools who will specialise in litigation must take part in a moot court which is apparently quite similar to what I describe. The main differences are, it seems, that what goes on in a US court is more scripted than in England and Wales and furthermore, shaogo puts it: "While at the appellate level, U.S. courts are a bit formal, in the State and Federal Circuit if a litigator were to say "If it please the court and my learned colleagues..." and all that before saying something the judge would just say "cut the crap and get on with it!""
History
The English legal tradition is an ancient one, those studying law frequently find themselves referring to cases of a hundred or two hundred years ago, sometimes as far back as the fifteen hundreds. Statutes go back even further, the 1290 Statute Quia Emptores still operates on virtually every land transaction made today! Ultimately, English and Welsh law goes back to the Norman Conquest of 1066 when William I effectively wiped the slate clean by successfully invading (though he did allow much of the populace to live by their old laws, some of which dated from Alfred the Great2). Legal education, therefore also has a near thousand-year history and some of the techniques that would have been familiar to students in medieval times are still practised by students today.
Mooting is one of these ancient methods of education. Since Anglo-Saxon times, the English and Welsh methods of dispute settlement have, in part, relied upon advocates; people schooled in the law by experience or education, who could argue a person's position much better than the person themselves. Over time these people came to be referred to as barristers, a reference to the fact that they could pass the bar that separated the audience of a court from the judge, jury and defendants. In order to assist these individuals, associations formed, providing an education, meals, accommodation and libraries. These associations became known as the Inns of Court. Four still exist; Lincoln's Inn, Gray's Inn, the Middle Temple and the Inner Temple. Dating from around the fourteenth century, the Inns of Court became almost fully responsible for the education of future lawyers and hold some of the earliest records of mooting competitions.
Precisely how mooting originated is unknown, but it is speculated that it evolved out of a combination of legal discussions and seminars and the need for students to acquaint themselves with the niceties and protocols of the courtroom. In these early stages there were very few printed texts on the law and so the only way students could learn the complexities of the legal system was through word of mouth and observing trials.3 This scarcity of written word lead to mooting becoming the method of learning the law.
Mooting's heyday was without doubt the early Tudor period. As the country ended its turbulent transition from a feudal monarchy to a merchantalist nation of free people, the role of the courts became of increasing importance. At this time, mooting had evolved into a highly complex system in which the senior barristers of the Inns of Court (known as Benchers) would give judgements in moots brought to them by qualified lawyers (Utter Barristers). So prominent and important were these cases that it was not unknown for the opinions of the Benchers to be cited in the real law courts! This is not as scandalous as it sounds, moots of this time were usually more to do with the methods of pleading than the actual law; praise would be given to barristers who arrived at unconventional conclusions by clever and subtle reasoning and rhetoric. The other reason barristers would take part in moots was that the courts of this time still used as their language the increasingly obscure law-French and practising this tongue was obviously a necessity for anyone hoping to succeed at the bar. Despite the obvious differences, some rules developed in these sixteenth century competitions are still considered to be the standard today. For example, in order to give the students a chance and to keep the time down, moot problems were to contain only two arguable points and the judge was not to question beyond them.
The rise of written texts in the seventeenth and eighteenth centuries saw mooting fall into decline. As the lawyers of the Inns realised they were no longer essential to students' education and the continence of the profession, they began to spend more time in the actual courts and less time educating. During the next two centuries legal education fell to the enterprises of the students themselves. This change lead to the creation of institutions found in almost all law schools and universities today; the mooting societies. Students, needing to practice advocacy would hold competitions, preparing their submissions and questions at length and judging themselves. This lead to a rather embarrassing situation in some law schools which caused Sir William Holdsworth to comment that "the pupils are wiser than their teachers!"
As legal education became more formalised in the late nineteenth and early twentieth centuries, the Inns of Court resurrected mooting as a method of teaching and formed official mooting societies. Today most universities and law schools include mooting to some extent in their training of future barristers. Some students, discovering they enjoy the exercise still form their own clubs to practice it, often roping lecturers and post-graduates in to judge their submissions. This has now lead to the creation of national mooting competitions, the finals of which have been known to be judged by Appeal Court judges and even Law Lords. Needless to say, the standard in these moots is extremely high and simply taking part in a national competition can be a major boost for a student's chances of being accepted into the profession.
A Moot Today
Preparation
A moot needs to be arranged, a judge needs to be selected, teams need to be found and a problem needs to be written. I'm sure that you can imagine what goes into arranging something like this; booking a room, arranging a time, a flurry of e-mails and phone calls, all the administrative doings that are the job of society executives. If a team is coming from another university, or if the competition is of some importance, just increase the number of emails sent, the number of phone calls made and the number of slightly panicked conversations as the deadline approaches. It is at this stage however that the rules of the moot will be decided, these can be as simple or complex as is thought needed; usually, the more formal the competition, the more complex the rules.
Selecting a judge is usually a simple task of finding a bored lecturer or post-grad, alternatively actual qualified barristers may be accosted, or even real judges, but the latter tend only to respond as personal favours or for high profile national or international competitions. Alcohol and free food can be useful as bargaining chips.
Teams will usually be made up of society members and tend to consist of two people, a senior and a junior. Sometimes complicated league tables are used in order to ensure everyone is pitted against someone of their skill level. Finally, the problem can either be written by the judge, written by someone in the exec, written by a lecturer or post-grad or found on the internet or in a book of mooting problems.
A typical problem will be in an area of law everyone is likely to have studied; usually Criminal, Contract or Tort, though more obscure or difficult subjects such as Land or Trusts do make an appearance. The format of the problem will have been to some extent dictated by the rules of the moot for instance if the rules say that teams may only speak for five minutes per person, then a complicated problem with several intricate issues is somewhat inappropriate.4 An average example of a Contract problem can be found here:
http://societies.ex.ac.uk/~BLS/round1mootprob.doc.
Research
Once the problem has been distributed to the teams, the research begins. Often mooting is an extracurricular activity and therefore participants often find themselves spending longer in the dusty corners of the law library than is probably healthy. Research is usually split between the two members of the moot team, the senior and junior counsel. Unless someone has messed up, teams will have been informed which side of the problem they will be representing and will tailor their research as such, though it is never unhelpful to try and guess what the other side will be submitting; nothing looks better than a mooter who manages to utterly refute the other team's argument before they've even put it to the judge.5
A mooter's submission should never, ever, ever, be a written speech. The reason for this lies in the fact that unlike a formal debate, where each side states their argument and then perhaps replies to the other side, in a moot the judge can interrupt and ask questions. If the mooter is reading from a speech, they will invariably find this extremely hard to deal with as it knocks them off their flow, or requires them to make alterations, or even restructure their argument entirely. Of course this does not mean a mooter shouldn't have some notes to refer to, but ideally they should contain only the basic structure of their argument along with any cases and quotations they want to refer to. Judges will sometimes ask a question that the mooter intends to cover later, this can be very frustrating for those with a planned out speech since simply telling the judge that you intend to answer later is a serious breach of etiquette, but for those who simply know what their argument is, they can often impress the judge by appearing to have anticipated the question.
The Moot
The moot itself will usually take place in either the Court of Appeal or the House of Lords.6 It is extremely important for a mooter to know which; the House of Lords may overrule itself and any lower court, the Court of Appeal is bound by itself and the House of Lords. In addition to its effect on what arguments may be forwarded, the place the moot takes place determines the form with which the mooter addresses the judge. Almost invariably then, the mooter will use "My Lord" or "My Lady,"7 the exception being if the moot is being held in the European Court of Justice, where "Mr. President" or "Mrs President" may be used, (though "My Lord" or My Lady" are also acceptable. If mooting in England, "your honour" simply makes the mooter look like they've watched too much American TV.
On the subject of etiquette, there are other protocols that must be observed. The first is that if it is not their turn to speak, the mooter should be silent. And sit still. There are only two times when a mooter not presenting their case may speak, the first is to excuse themselves in an emergency such as sudden illness, the second is to point out a breach of conduct on the part of the other team that the judge will not have noticed, such as presenting the facts of the case in a biased fashion. If it is possible the judge has noticed and not said anything the mooter must remain silent and assume the other team has had it marked against them anyway.8 Another point of etiquette is that when referring to the opposition, the mooter must address them as "my learned friends," or "my learned friends opposite" or "my learned friends, the counsel for the appellant/respondent."9 Generally it is better to be overly and nauseousness polite than to chance informality; phrases such as "if it please your Lordship, it is my respectful submission that the arguments forwarded by my learned friends the counsel for the appellant are erroneous on the following points..." are to be encouraged.
When the moot opens, the leading (or senior) appellant should introduce the teams and give a brief outline of the facts of the case. In some moots the latter can seriously eat into their time and so it may be acceptable to ask the judge if it is in fact required. In other moots it is simply a courtesy around which a submission should be planned. Very occasionally the introduction will not be taken into account in the moot's time limit.
When all the teams have made their submissions, there is occasionally a right of reply. Once this is discharged by whoever possesses it, the judge will give their judgement. Unlike in a real court, the judgement consists of two parts, the first, is the role-played proclamation of who won the case. The second however, is the more important statement of who won the moot. Moots are judged not necessarily on whether or not the case was won, as some problems can be very biased towards one side, but on who made the best presentation. This will be based on a number of factors such as clarity of argument, how well the mooter responded to the judge's questions, whether they breached court etiquette at any point, etc. The precise criteria differ from moot to moot. Depending on how close it was, and how complex the case, the judge may retire before pronouncing judgement and should inform the mooters as to how long this will be likely to take.
Why Do it
Mooting is of most use of course to those who want to practice at the bar. It teaches the basics of presenting a case to a judge using the correct etiquette, how to deal with unexpected questions, how to modify an answer to counter the opposition's most effectively and the like. However, mooting is not just for wannabe barristers, or even just for those studying law.
An understanding of legal reasoning is a very valuable asset to have, law, as has already been elaborated on, is an ancient discipline and its methods are some of the most refined this side of philosophy. Being able to clearly and concisely present a legal argument will teach you skills that transfer across many areas of life. In addition to this, mooting will make you a better public speaker, and as at some point we all have to do this, even if it is just a drunken speech at a friend's wedding, it is a very useful skill to have.
Finally though, mooting is fun. If you're of an academic persuasion, the research involved will enthral you. Law is the study of human endeavour in all walks of life, every case is someone's story, reading them can be a great pleasure. Judges, whilst they have a reputation for being dry and boring can be quite witty and in important judgements quite profound. Studying cases is something that can be relished. If the research side of it doesn't grab you however, the rush you get as you take to the rostrum might. Pitting your wits head to head against someone, picking holes in their argument, for anyone with even a slight aggressive streak, mooting can give them a lot of pleasure. Finally, for anyone who simply enjoys exploring something; seeing what they can make of it, mooting allows you to test your thoughts against the sounding board of a judge and opposition.
As a final word then, mooting is not exclusively the domain of lawyers, nor is it an ancient concept nearing a rightful death. It is an interesting and diverting way to learn a subject and improve your intellectual abilities that will last a long time into the future.
1England and Wales are one legal jurisdiction, both Ireland and Scotland have their own courts systems and separate laws. When legal texts refer to England, they generally mean “England and Wales,” but I go to a Welsh university and it'd be rather bad form to fail to acknowledge the country as an independent entity, if not in law.
2This technique is probably the main reason William was accepted by the English. In the Prince, his treatise on conquest and governance, Machiavelli notes that the easiest way to keep a newly acquired (though in context, hereditary) principality is not to change anything. (Machiavelli, Niccolò The Prince Ch. II “Of hereditary principalities”)
3Interestingly for many years the Law Reports, the documents referred to by every barrister when citing precedents, were really no more than compilations of students' notes!
4This happened in the fourth moot I ever took part in. The rules were the university's standard internal set in which each counsel has five minutes to submit their case, this included judge's questions. Despite spending an inordinate amount of time preparing, both my junior and I found our arguments were being ripped to pieces by the judge because we hadn't had time to substantiate them.
5In addition, nothing is more irritating for the opposing team, this I promise you.
6 Well, in fact it will usually take place either in a mock courtroom or an empty seminar room or lecture theatre. The pretence is that it is one of the Royal Courts of Justice. In national competitions actual courtrooms may be used for the final rounds.
7It used to be the case that female judges would also be addressed as "My Lord" but this was both sexist and confusing, however, a panel of judges including both males and females will usually be addressed as "My Lords" for brevity. Nevertheless, mooters often get this wrong, either addressing a female judge as "My Lord" or using "Your Lordship" when they mean "My Lord" or even using the absolutely incorrect "My Lordship." The rule in the latter confusions is that when in normal conversation the word would be "you" counsel should use "Your Lordship" and when in normal conversation, the word would be the judge's name, counsel should use "My Lord."
8Watching too much American TV can again be hazardous here. Mooters must not jump up with a shout of "Objection!" they may, occasionally, stand up, and wait until they are invited to speak. Barristers are humbled by the judge (honest!) and must act it.
9Another point a lot of mooters get wrong is that they are in an appellant court and therefore are not the prosecution/claimant/plaintiff or defence, they are either appellant or respondent.
Sources:
Snape, J and Watt, G "How To Moot, A Guide to Student Mooting" (Oxford University Press, 2004)
Slapper, G and Kelly, "The English Legal System" (Cavendish Publishing, 7th Edition 2004)
Lecture delivered by Neil Kibble at University of Wales, Aberystwyth, November 2004
University of Wales, Aberystwyth Mooting Society's official literature
Personal expereince of moots
Machiavelli, N The Prince (Oxford World's Classics, 2005, translation by Peter Bondanella
/msgs from shaogo