A moot is not a debate. In a debate, all you are expected to do is address people, usually without the use of any external material and I usually say, a debate is a performance and the best entertainer who informs people the most usually wins.
A moot is different. It is a conversation between you and the judges. They are free to ask you questions as often and as slowly as they like unless the competition rules expressly make a contrary stipulation.
So, yes a judge might ask you questions because he honestly is confused or mistaken about a fact, or the position of the law, and he wants clarification. Some other judges are just plain antagonistic. They have read the competition case, they are aware of all the facts, abreast of the law and all the contentious matters involved and now they want to show the world that you have not done your homework.
First Things First, Prepare
This just stands to reason. Confidence stems from preparation. Always contemplate the possibility that your judges and or opponents know a lot more than you do.
Read the problem
‘Captain obvious’ you might say, but this is where many people get it wrong. By “read the problem”, I mean really read the problem.
Words are the tools of lawyers. Read the problem as many times as possible. Read it when you first get it. Read it every day after then until competition day. Read it on competition day. You never know what new issue you might find. In the last international moot I participated in, what I needed to establish that a particular municipal law was in conformity with international law was the fact that one of its provisions was separated from the others with a comma and not a semicolon as I had originally thought.I was not even the one that discovered it. It was a teammate.
A standard problem has parts that are favourable to both sides. You would do yourself a great disservice if you fail to utilize every single strong point for your side. It is also very useful to be aware of the portions of the fact that are not favourable to your case. The judges are probably aware of these facts. Do not run away from them. Find ways to justify them or tweak them in your favour.
A moot is set on a piece of law that is uncertain. If you find cases that support a favourable view on the law, you should argue that these are relevant to the facts in issue or can be applied by analogy (because the cases border on the same principles of law).
If the cases are unfavourable, you need to consider how to ‘distinguish’ these cases so that your opponent cannot rely on them, or you can invite the court to overrule them.
Arguing with authorities is not the only way of arguing in a moot. Especially in the Supreme Court, International Court of Justice, etc. where there is freedom to change the direction of the law, it is important to provide some arguments on principle and public policy, detailing why the law should develop in a particular direction.
Rebut, and don’t be rebuttable!
Structure your argument strategically. In most moots, you will be arguing for both sides. The advantage of this is that you will have a good grasp of the arguments your opponents are likely to present for both sides since you are arguing them yourself. While writing your arguments, prepare to rebut your opponents’ arguments. Water down all their defences, you may say for instance: ‘The respondent may argue that Country A is not liable for the damage suffered by Country B because the damage was not caused by the fault of Country A; but the applicant submits that this argument is flawed on the ground that liability for damage caused to the surface of the earth by the space object of another country is an absolute liability, and no proof of fault whatsoever is required. Country A is therefore liable for the damage suffered by Country B.’
You will not have a very long time to argue and more often than not, you will have much less time than you need to establish your case and exhaust every dimension of your argument. Rebutting your opponents, therefore, does not have to be a separate endeavour from your arguments. Use your arguments to rebut. Mention their arguments and then state yours to counter them. If this is effectively and cunningly done, you will have succeeded in destroying their case and establishing yours in the minds of the judges. Preempt rebuttals to your argument and rebut them.
It is usually the practice that memorials are exchanged before the moot itself, and this is particularly useful if you are appearing on behalf of the Applicant as you will not get the opportunity to listen to the respondent’s arguments before you address the court. The great thing about this is that many people simply argue the contents of their memorials. It is usually the case that once you get a hold of their memorial, you have their entire argument. They have no backup plans or alternatives. If you manage to rebut every relevant argument in their memorial, they are pretty much stranded, and this almost always happens. When they eventually make their oral submissions, they are unable to convince the judges as they are thrown off balance and are unable to recover from the fact that all their strong points have been watered down.
As the Applicant, after you have seen their memorials and arguments, you know for certain which of those arguments you predicted they will eventually be arguing. You may now use expressions like: ‘Your Lordships, the Respondents have argued on Page 2 of their memorial, particularly at Paragraph 12, that Mr. Basco did not validly alienate the land in question to Mallam Kasili as he did not obtain the consent of the principal members of the family before carrying out the sale, we, however, beg to differ on that point. The respondents, in this case, have failed to take into account the fact that these principal members of the family were aware of the sale and did not raise an objection by instituting an action before the court for 15 years. The applicants submit that the equitable doctrine of laches and acquiescence is applicable in this case.’
Once you can establish that the doctrine of laches and acquiescence indeed estops the respondents, then, you have faulted their argument and if they have no alternative arguments and have not proactively insulated themselves against this line of argument, then chances are that that issue will be resolved by the court in your favour.
If you are appearing as the respondent, unless you are arguing ex parte, you would have had a chance to listen to the Applicant’s argument (which is most likely a reflection of the contents of their brief). This is great! Now you can say, with some flavour of amusement and a subtle hint of disbelief: ‘Your Excellences, the Applicants have argued that the Republic of Rastalia granted Commander Borsch asylum in line with their sovereign rights, but they have very conveniently neglected the general principle of international law, reflected in the constitutions of most countries of the world which stipulates that states are to grant asylum only to persons that are being persecuted or are under serious threat of persecution in their countries of residence. The respondents submit that since commander Borsch was according to the Paragraph 7 of the statement of agreed facts, not under any persecution or threat of it in his country, Rastalia could not have validly granted him asylum.’
Finally, on the point of rebutting, it is a crime (by virtue of my personal criminal code) to rebut what has not been stated by the Applicants. For me, it shows nothing but a strong desire to say something irrelevant simply because you researched it. The unfortunate thing is that it happens a whole lot. I once had an opponent who spent about two minutes of her precious time rebutting something I never even argued (I considered it a weak/unnecessary argument) simply because she had it in her own argument for the other side. I kept looking at the judges to make sure they did not believe that I made such a submission, in case they had forgotten.
Tolulope Dada is a 400 level law student at Obafemi Awolowo University. She is passionate about Tax and Finance, and has interned with KPMG Nigeria and SIAO.
Tolulope is a member of the Debate Committee, and the Moot & Mock Committee of her Faculty. She started mooting in 2016 and has represented her university, Nigeria and Africa in a number of competitions.
The height of her mooting career came in 2016 when she and her team won the Africa round of the Manfred Lachs Space Law Moot and went on to become runners up of the world finals in Guadalajara, Mexico, presided over by judges of the International Court of Justice.
Other competitions she has participated in include Dele Adesina Moot and Mock Competition, 2016 and 2017; Professor I.O. Agbede National Moot and Mock Competition, 2016; Price Media Moot, 2017 and the International Humanitarian Law Moot, 2017.