QUOTALS Mooting Workshop

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QUOTALS Mooting Workshop

• Susan Hedge
• Thursday 24 April 2008

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The basics
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What is a moot?

• A moot is a formal legal argument before a judge
  or judges about points of law raised in a
  hypothetical case. It is never about facts they
  are assumed (but it may be about what those facts
  mean to the legal conclusion)
• Two teams applicant/appellants team and
  respondents team
• Mooting team of 2 students a senior and junior
  counsel

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Some terminology

• Appellant team appealing the decision below
• Respondent team responding to the appeal
• Counsel students mooting on each side
• my learned friend mooter on the other side
• my learned colleague your senior/junior
  counsel
• your Honour/s the judge/s

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From getting the problem to the competition
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1. Research

• Research for a moot is undertaken in the same way
  you research for anything else.
• Work out the facts (can you draw any inferences
  which are supported by the facts?)
• Decide on relevant law
• for junior moot 4-5 cases per counsel is a good
  medium
• remember you need to know the cases you rely on
  inside out so you dont want too many
• Apply the law to the facts
• Come to a conclusion

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2. Argue, discuss, consider, synthesise and argue
more!

• Talk your arguments through with your partner
• Run through possible options, orders for
  arguments and ideas
• Have your partner/mother/best friend ask you
  questions about your argument
• They dont need to know anything about the law
• If you cant explain it to a lay person, you need
  to think of an easier way of saying it
• Explain it to yourself in logical steps

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3. Written outline

• Will constitute the judges first impression of
  the talent/ability of your team
• The judges rely on this for an understanding of
  the case
• It must be correct in law, fact and in
  citations
• It must be honest
• It must deal with all relevant points, good and
  bad to your case
• It must be short follow the rules
• It must make an argument it must not read like
  an assignment

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4. Practice moots

• Practice your arguments again
• Make sure your arguments fit within the time
  limit
• Make sure you can explain
• Each of your points
• Each case you intend to rely on
• in one minute!
• Tip run through your argument walking to the
  bus/train or driving to a friends house dont
  use any notes and work through it logically

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5. Being ready on the day

• Dress in business attire (jacket)
• Be on time to the moot court
• Check you have your notes copies of outlines
  for you and the judges copies of every case you
  intend to rely on

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6. The moot

• Appearances
• Judge will call on senior counsel from each side
  to give an appearance for their team speaking
  times, appellant team first, then respondent
• Supreme Court of Queensland Practice Direction No
  3 of 2006
• Example My name is Hedge initials S J and I
  appear with Mr Fraser initials B J for the
  Appellant. We will each speak for 10 minutes.

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6. The moot (cont)

• Order of speaking
• Appellant Senior counsel
• Appellant Junior counsel
• Respondent Senior counsel
• Respondent Junior counsel
• Rebuttal counsel (either) from the Appellant
  (not in Quotals Junior Moot)
• Surrebuttal counsel (either) from the Respondent

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6. The moot (cont)

• Structure of a good argument
• Outline of submissions
• Body of submissions
• Move logically through points you wish to make
  use enumeration
• Rely on relevant authorities
• Balance a logical structure with responding to
  the judges questions
• Summarise
• Summarise submissions made and orders sought ie
  that the appeal should be allowed

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6. The moot (cont)

• So, you have all the law, but equally (or more)
  important is how you get it across
• Presence in a court room
• Stand behind the lectern.
• Body language.
• Eye contact.
• Use hands in a natural way.

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6. The moot (cont)

• Speaking style
• Speak slowly and clearly.
• Signpost your argument.
• Be conversational.
• Engages the judges.
• Persuasive and likeable.
• Be responsive.

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6. The moot (cont)

• If possible, try not to
• read your submissions word for word.
• get frustrated with the judges.
• confer with your partner while youre speaking
  (as it looks indecisive).
• lecture the judges.

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6. The moot (cont)

• Timing must cover the important things in the
  time allowed
• Dont try to say too much (practice!)
• Be prepared (if necessary) to cut some arguments
  while speaking.
• Be prepared (if necessary) to move on to a new
  argument.
• Usually able to ask for a small extension, but
  only if you need it try not to!

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6. The moot (cont)

• Rebuttal
• Not in the Quotals Junior Moot, but is in the
  Senior, and also in all major inter-University
  Competitions
• Opportunity to counter the oppositions argument.
• Keep it short a couple of minutes is usually
  adequate.
• Target 2-3 arguments. Be as specific as
  possible, especially if opposing counsel has got
  the law or facts wrong.
• Good rebuttal relates to important issues.
• Eg. where it relates to an argument where the
  opposition did a good job of attacking your case,
  or where it relates to an argument the opposition
  spent a lot of time on that you did not consider.

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6. The moot (cont)

• Answering questions the win or lose section of
  mooting
• Purpose for you to show how deep your knowledge
  is and that you can think on your feet
• Listen to the judge
• Make sure you understand the question
• Re-state the question back to the judge if you
  are unsure
• Feel free to take a second to think better than
  rambling!

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6. The moot (cont)

• Answering questions (cont)
• Yes/No if possible
• If more than one point, structure your answer
• Answer the question you are asked, not one you
  want to be asked
• Answer succinctly if you can
• Back up your answer with an authority if it is
  law based
• Give the judge ALL the information you think they
  want and that means, listen, read body
  language, understand what type of judge they are

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6. The moot (cont)

• Answering questions (cont) things not to do
• Patronise the judge Thats an excellent
  question, Your Honour
• Lie
• Make up facts or law
• Not answer the question
• Ramble

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6. The moot (cont)

• Answering questions if you dont know the
  answer to a questionthere are a couple of
  options (choose the appropriate one, but note
  using almost any of these will lose you marks!)
• That is unclear on the facts your Honour
• I do not have any submissions on the point of
  fraud your Honour, however in R v Yellow the QCA
  held that fraud was irrelevant to a charge under
  section 144
• I apologise your Honour, I am not familiar with
  that case (if you think you should know it)
• I am not familiar with the facts of that case
  your Honour however it was overruled by the High
  Court in Good v Better
• I am not sure your Honour if you really dont
  know and you cant extrapolate. After you have
  used this one, move straight onto your next
  submission

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6. The moot (cont)

• Dealing with judges
• Pretend you want to be friends with them treat
  them how you would a new, older, cooler friend,
  so
• Dont speak over them EVER so you need eye
  contact so you can see whether they are speaking
• Respect, deference and more respect!
• They are not wrong, they are simply misguided
  sometimes it is your job to guide them back to
  the relevant issues and to the facts and
  authorities that means your client wins
• Charm them, smile, send off good vibes!

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Questions?

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Demonstration

• Counsel Ben Fraser Jodie Connolly
• Judge Susan Hedge

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R v Wilkinson charged with defacing brands on
cattle under s448(1)(b) of the Criminal Code 1899
(Qld)

• 448 Defacing brands
• (1) Any person who
• (a) alters, defaces, or otherwise renders
  undistinguishable, any registered brand or
  registered mark on an animal that is stock or
• (b) knowingly permits any such act to be done by
  any person over whom the person has control
• is guilty of a misdemeanour
• Facts
• Wilkinson owns cattle property at Dalby, borders
  two other properties owned by Fraser and Connolly
• Wilkinson brands her cows with a milk bottle sign
• Fraser brands his cows with a coke bottle sign
• Connolly brands her cows with a rum bottle sign
• All brands are registered brands

• Wilkinson employs her husband (through a company
  for tax reasons), Dempsey, to round up the
  cattle, organise butchering etc
• Wilkinson brands her cattle herself
• Dempsey creeps up behind Connolly when she is
  branding with the rum bottle sign and pokes her
  in the ribs with a large stick
• Connolly flinches, smears the brand which ends up
  resembling a milk bottle
• Connolly looks up to the Wilkinson ranch to see
  Wilkinson looking out the window struggling to
  contain her laughter
• Wilkinson Dempsey have had very happy marriage
  with 6 children, although Dempseys friends
  describe him as whipped
• Found guilty and fined 300 at trial before a
  judge
• Appeals to the QCA on the ground that the verdict
  is unsafe and unsatisfactory because the evidence
  is not sufficient to support the verdict beyond
  reasonable doubt

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Exercises

• Appearances
• Presentation of argument
• Questions

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QUOTALS Pty Ltd v Susan Hedge 2050 QCA 230
appeal against finding that Hedge breached
directors duties to avoid conflicts of interest

• Susan is a director of QUOTALS Pty Ltd. She holds
  a LLB but otherwise has no special training
• Susans husband owns a property in the middle of
  QUT (Old Government House)
• Susans husband has a bet with his friend, Jack,
  that if he sells OGH for more than 2 million,
  Jack will give him and Susan 20K. Susan does not
  know of the bet.
• The QUOTALS board is considering purchasing OGH
  to hold functions including the law ball
• Susan tells the board that her husband owns OGH
  but not about the bet with Jack
• The board resolves that Susan continue to be
  involved in the decision regarding OGH

• Directors of companies have a duty to avoid
  conflicts of interest, and so not be involved in
  tranx where they have a conflict
• A director will have a conflict if a reasonable
  person looking at the circumstances would say
  there was a real, sensible possibility of
  conflict Phipps v Boardman
• If a director makes full and frank disclosure of
  all material facts regarding a conflict to the
  board, and the board resolves that the director
  may continue to act, the director may act without
  a breach of duty RR 194 and Woolworths Ltd v
  Kelly