This was originally published in Gyancentral.com in 2012, and now being republished here. Copyright belongs to Ramanuj Mukherjee.
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The biggest mistakes that mooters make
As mentioned in my last week’s column, I was recently at the Indian pre-moot of the Willem C. Vis moots as a judge. I had promised in that column that I will share my extensive notes on the common mistakes made by mooters in general.
While mooting, it is quite difficult to understand what the judge is actually thinking, or experiencing as you proceed. However, as should be obvious, your key to doing well in the moot is in the mind of the judges. Often a judge has very different perspectives and priorities with respect to mooting as compared to the mooters themselves. Being aware of these priorities and perspectives can help you a great deal in mooting.
If you have ever mooted in your life, I don’t think I need to convince you any more about this. Without further ado, let me share with you some of the mistakes I saw in court after court, as otherwise intelligent and well prepared speakers massacred their chances of winning the court by making these mistakes.
Failing to give a roadmap
The judge doesn’t know what you are going to argue. As you go on speaking – he may not be able to follow the thread of your arguments. The best mooters inevitably present a roadmap at the beginning. They tell the judge how they are going to issue a certain issue – by breaking down the issue into elements. Debaters will be very familiar with this concept of a roadmap – but this is probably even more important in moots. You should give a roadmap of your entire speech, and then as you deal with each issue – you should again provide a roadmap. When you are done arguing, you should ideally again touch on the roadmap saying that you have argued so and so, thereby proving so and so.
Let me give you an example. Lets say you are arguing that the opponent was negligent in their conduct. You could say that
“My Lord, the defendant has been negligent in their conduct. Firstly, they forgot to wake up my client in the morning. I would argue that, one, this was breach of their contractual duty under Clause 15 of the contract, and two, that this was negligence under the laws of Schwaziland even in absence of any contractual duty. Now coming to the first leg of that argument, that the defendant had a contractual duty to wake up my client, I’d like to point out that …. ”
Giving a roadmap to the judge in this way helps him or her to follow your arguments. The more you do it, more likely that your arguments will be understood. If you fail to give a roadmap – that itself may be the end of your chances to win.
Answer questions directly
In any moot you’ll be asked questions. Sometimes judges want a question in affirmative or negative. Do not worry, just provide the answer the judge wants. Many speakers get defensive when asked a question and tries to be non-committal in their answer. Some folks even try to circumvent or avoid giving a direct answer to a question. This is terrible, the judge is going to hate you if you do that. If you think you know the answer – provide it. If you don’t know, admit it and apologise. Anything else is suicidal. Only a direct answer must be given. Never even risk sounding evasive.
Also, many speakers give the justifications before coming to the real answer. This amounts to testing the patience of the judge. Give the answer first, and then go on to justify it. If I say “Counsel, who woke up the claimants from sleep?” You just say the name of the person who did so. Maybe this fact weakens your argument, but that is no justification for not answering my question immediately and directly. Answer the question fair and square and then explain away the fact if you can do so. However, some speakers, instead of giving the answer, will start defending their position right away. This does not help at all. The rule is – first you clearly state you position in one sentence, and only then you go on to the reasons and justifications of why you assumed that position.
To be honest, this was a long standing problem with my communication style – that I didn’t answer questions directly, but went on to explain my answer before actually coming to it. I’d show the reasoning first, and then state my answer. This is the worst way of answering a question, and thankfully I learnt this while I was mooting. A large number of speakers suffer from this – mooting is your chance to cure this problem.
Stick to your gun
If you have decided to take a position, researched on it, and have enough reasons to support it, and finally you have blurted it out in the court – do not change it when I start questioning it. At least half a dozen speakers did this at the moot – when they would face tough questions, they would quickly shift their position and argue something else. Judges notice this, and hold it against you. If you have taken a stance, stand by it – even if it is trounced. If you are changing your stance, do it fairly – acknowledge that you are giving up that argument, move on to your next argument or next issue – do not try to pretend that you never argued it in the first place. Don’t try to distance yourself from the argument by being vague and ambiguous. It is quite obvious when you do that.
Sometimes, a speaker would argue the correct position of law, and when the judges will ask you some questions he would do an about turn. This is embarrassing for everyone, and shows tremendous lack of confidence.
Taking too much time to tackle real issues
Some of the teams in every moot displays surprising lack of understanding of priorities. Every moot problem has some real meaty issues, and some issues which are just peripheral. As a mooter, you have to argue everything, but come to the real meaty issues quickly. Do not waste your time arguing frivolities – which many mooters tend to do. Even when it comes to arguments – there are better ones and there are weak ones. Argue your strongest issues – no one has time to argue everything. Come to the strongest arguments in the biggest issues quickly – these are the issues which will decide if you are a winner.
In many courts, you’ll not be able to argue every issue. Sometimes all you get to argue is one argument as the judges start asking questions aggressively. Hence, be choosy about what you start to argue. Do not argue your weak arguments at all. Your innovative arguments are often best used in response to questions. Think well about the priority of issues and arguments.
Repetition
Do not repeat what you have already said unless it is necessary. Mooters who keep harping on the same facts too many times, or keeps going back to one argument again and again makes a judge frustrated. Repeat only when asked. Repeat also when you want to reinforce an argument, but do it very carefully. Your repetitions must not become too many and too boring. Anyway the time is less – use it to say something new.
There are many other mistakes in my list – I plan to cover them in my next article.
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