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A Moot court is an extracurricular activity at many law schools in which participants take part in simulated court proceedings, usually to include drafting briefs and participating in oral argument. The term derives from Anglo Saxon times, when a moot (gmot or emot) was a gathering of prominent men in a locality to discuss matters of local importance. The modern activity differs from a "mock trial", as moot court usually refers to a simulated appellate court or arbitral case, while a "mock trial" usually refers to a simulated jury trial or bench trial. Moot court does not involve actual testimony by witnesses or the presentation of evidence, but is focused solely on the application of the law to a common set of evidentiary assumptions to which the competitors must be introduced.

In the United Kingdom and Commonwealth countries, the phrase "a moot court" may be shortened to simply "a moot" and the activity may be called "mooting".

Contents

Operation

Law schools structure their moot court programs differently. Some moot court organizations accept a small group of people for membership, and those members each participate in a number of national or regional moot court competitions. Other schools accept a larger number of members, and each member is matched with one competition. A few schools conduct moot court entirely intramurally. Moot court competitions are typically sponsored by organizations with interest in one particular area of law, and the moot court problems address an issue in that field. Competitions are often judged by legal practitioners with expertise in the particular area of law, or sometimes by sitting judges.

The basic structure of a moot court competition roughly parallels what would happen in actual appellate practice. Participants will typically receive a problem ahead of time, which includes the facts of the underlying case, and often an opinion from a lower court that is being challenged in the problem. Students must then research and prepare for that case as if they were lawyers or advocates for one or sometimes both of the parties. Depending on the competition, participants will be required to submit written briefs, participate in oral argument, or both. The case or problem is often one of current interest, sometimes mimicking an actual case, and sometimes fabricated to address difficult legal issues.

A number of moot court competitions focus on specific areas of law. For example, the First Amendment Center annually holds a National First Amendment Moot Court Competition, in which the judges have included numerous United States Circuit Court Judges.[1]

Mooting in different countries

United Kingdom

The courts systems differ in various parts of the United Kingdom. Thus, the style of a moot will often vary depending in which jurisdiction it is to be heard, although some national competitions do exist. The principal differences are between the laws in Scotland and those in England and Wales. Each jurisdiction is dealt with separately below.

England and Wales

In England and Wales the moot will typically simulate proceedings in either the Court of Appeal or the House of Lords.

Moot questions generally involve two questions of law that are under dispute and come with a set of facts about the case that have been decided at the first instance trial.[2] Generally the question will surround a subject that is unclear under the present state of the law and for which no direct precedent exists. Mooting is a team effort, consisting of senior or lead counsel and junior counsel. It is normal practice for the senior counsel will take on the first point and the junior the second; although this may vary depending upon the exact nature, and necessary length, of the arguments.[3] Typically the question will focus on one area of law, e.g. tort, contract, criminal law or the law of property.

The question will be provided to the teams a few weeks in advance of the moot along with details as to which of the appellant or respondent they are to represent. It is then up to each team to prepare their case as though they were barristers. Authority for each argument is necessary and will usually take the form of precedent from case law but may also involve legislation. Reliance may also be placed on governmental papers, research from NGOs and academic journals and texts.

A few days before the moot takes place each team will prepare and exchange their skeleton arguments or brief. Copies will also be provided to the judge along with the moot problem. The judge is normally an academic or practising solicitor or barrister.

The moot itself takes the form of an oral argument. The order in which the advocates will speak mirrors that of the actual courts the exercise is based upon. In England and Wales the order would be as follows:

  1. senior counsel for the appellant
  2. senior counsel for the respondent
  3. junior counsel for the appellant
  4. junior counsel for the respondent

The competition may also allow the appellants an additional few minutes in order to reply to the respondents arguments.[4]

After the presentation of arguments has concluded, the judge will retire to deliberate on both the law and the overall winning of the moot. A moot is not won and lost on the legal argument, but on the advocacy skills of the participants. It is often the case that the team that has the weaker legal argument is in a better position as they have to argue that much more persuasively.

Scotland

In Scotland a moot can be set in a variety of fora; in civil law problems it is set most commonly in either the Inner House of the Court of Session or in the House of Lords, however it is not uncommon for a moot to be heard in the Sheriff Court before the Sheriff or Sheriff Principal. Occasionally, an Employment Appeal Tribunal may also be used as a forum for a Scottish civil law moot.

If the moot problem is in the field of Criminal Law, the moot will most likely be heard in the Appellate division of the High Court of Justiciary (commonly known as the Court of Criminal Appeal).

The moot points and style of the problem are similar as to that of England and Wales stated above. However the format of the moot is significantly different. Junior counsel is more likely to take the first moot point with the senior counsel taking the second point (this can however be reversed depending on the problem).

The order in which the Advocates will speak mirrors that of the actual courts the exercise is based upon. In Scotland the order would be as follows:

  1. junior counsel for the appellant
  2. junior counsel for the respondent
  3. senior counsel for the appellant
  4. senior counsel for the respondent

Please note the terms 'appellant' and 'respondent' are used loosely, and depending on the forum, may not be the correct terms e.g. In an appeal to the Inner House of the Court of Session (known as a 'reclaiming motion', the appellants are known as 'reclaimers'). Generally, Scottish competitions do not allow the appellants a final right of rebuttal to reply to the respondents' arguments.

The format of the moot is far more adversarial than that of English and Welsh moots. This is primarily due to a more adversarial legal system. This manifests itself in different ways, most notably with the appellants and respondents facing each other during a moot, rather than as in England and Wales, facing the judge.

There is only one national Scottish competition, the Alexander Stone National Legal Debate, administered by the Law School at the University of Glasgow. All Scottish universities that offer the LL.B. are eligible to take part, although in recent years the competition has been fought out mainly between Dundee, Edinburgh, Glasgow and Strathclyde universities. The final is held in the Alexander Stone Court Room at the University of Glasgow in February or March each year. The current holder of the trophy is the Strathclyde, .

There is also an annual inter-varsity competition between the Law Schools of Glasgow and Strathclyde, in the form of the Glasgow Sheriff's Cup. This is organised by Glasgow Sheriff Court and is judged by a Senator of the College of Justice. The moot is held annually in May or June each year and takes place in one of the larger court rooms at Glasgow and Strathkelvin Sheriff Court. The current holder of the trophy is the Strathclyde, whilst Glasgow University lead the series 10-9.

Law Schools in Scotland also take part in UK-wide competitions, such as the Oxford University Press and the English Speaking Union Moot. These moots are UK-wide in participation, but typically follow the style and law of moots in England and Wales. The University of Glasgow reached the semi-final of the English Speaking Union moot in 2008 and the final in 2005. The University of Dundee reached the semi finals of The Oxford University Press moots in 2009.

Notable moot competitions

See also

  • Mootness, which has a precise meaning in United States law that is quite different from United Kingdom usage.
  • Moot Alumni Association (MAA), the Alumni Association of the Willem C. Vis International Commercial Arbitration Moot

References


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