How to Research for Moot

HOW TO RESEARCH FOR A MOOT???

Institute of LawNirma University

Exercise undertaken by: Moot Court Committee

IntroductionAlthough mooting is associated with advocacy

skills and the ability to ‘think on one’s feet’, the contribution of detailed research and preparation to the quality of the speech that is delivered should not be underestimated. It is true that the best mooters are able to bluff their way past any gaps in their knowledge but the thought of being lost for words during the moot is one of the greatest concerns expressed by prospective (and more experienced) mooters and the best way to avoid it is to engage in thorough and meticulous preparation.

Reading the competition rules and the moot problem

Be sure to read the rules of the competition, most competitions forbid competitors to seek advice from lecturers, tutors or any other source. The competition rules will also provide you with the competition deadlines, it is essential that you immediately set aside a generous amount of time for mooting preparation. The fact scenario for your moot will be distributed before the date of your court presentation. Your preparation period will be determined by the rules of your particular competition. You must first read the entire moot problem, noting your initial reactions. At this point in the competition teamwork is essential. Your team should brainstorm what you have identified as legal issues and the potential weaknesses of your argument.

Identification and delegation of main submissions

In some competitions the moot problem will provide the main submissions and state which team member must address them. In other competitions you will have the task of identifying and delegating your main submissions. The fact scenario you will be given will disclose a number of legal issues. Your task is to provide a main argument (submission) for each issue that advances your argument. The order in which your submissions are presented must reflect a consistent and logical legal argument to enable you to persuade the bench.

Further individual research

Analyse the factsThe starting point for preparation should be an analysis of the moot problem itself. It is a good idea to familiarize yourself with the facts and issues before researching the law.

It is true that some mooters prefer to start by researching the legal issues on the basis that a moot concerns a point of law. However, it seems preferable to know what the problem is (the facts) before investigating the answer (the law). By familiarizing yourself with the point of appeal and the relevant facts, you will be able to undertake more purposeful and effective legal research.

Search for relevance

Do not forget that each sentence holds information of relevance. You may not be able to work out why a particular fact is relevant at first reading. It may not become apparent until you have researched the law and given the facts further thought. If the relevance of a particular fact remains elusive, it can sometimes be illuminating to consider how the problem would be different if that fact was either altered or entirely absent.

Two sides to the argumentRemember that the point of appeal has been chosen

because it can be argued either way, so there are probably as many facts in the problem that support your opponent’s argument as there are that support your own.

Never blind yourself to your opponent’s argument.A good mooter knows the opposing argument as well

as they know their own, as only if you have considered how your opponent will attack your submissions can you attempt to defend them against this. Scrutinize the facts carefully for information that supports your own stance and for facts which favour your opponent and make a note of these.

Identify issuesOnce you have a clear idea of the facts

surrounding your point of appeal, you will probably find it relatively straightforward to make a list of questions that need to be answered. Of course, as you have not yet made a start with your research, your list of questions will probably be quite broad and general but it is still worth making a list, as this should identify the core issues and it is always much easier to research if you have a series of questions that need to be answered.

Research the lawAs a starting point for your moot research, there are two

key things that you should seek to find:1. a concise and accurate statement of the current law,

including relevant statutory provisions and case law; and,

2. a clear and relatively detailed summary of the law that provides some indication of the scope of the topic and insight into problem areas.

Sources

Charters and Documents of UN

Legislations

Halsbury’s Laws

Textbooks

Treaties and Conventions

Researching cases Case law should form the bulk of your research for a

moot. Starting with the core cases identified by legislations, Halsbury’s Laws, textbook, etc. research itself, you should read each case carefully, noting the points that support your point of appeal and the points that go against you.

Further depending upon the points of research further case-laws with the similar relevance can be looked into.

Manupatra

SourcesBestlaw (Combination of Westlaw and Indlaw) AIR Software

Patent & Trade Mark Cases

SCC Online

There are a range of issues to take into account when dealing with case law:

Which court heard the case?

What is the legal issue?

What was the ratio and what was merely obiter?

In what jurisdiction was the case heard?

Has the case been used in subsequent cases?

Whether or not the case has been over-ruled and if it has upto what extent.

ArticlesIt can be useful to think of engaging in research for a

moot as a staged process whereby you take a progressively deeper look at an increasingly narrow issue.

Articles can provide a fantastic insight into the intricacies surrounding the interpretation of a particular issue or speculating on the implications of a particular case, so, in a way, can carry some of the weight of formulating your submissions for you. Articles may also provide a means to expand a particular legal principle into a new area in the absence of any case law that considers the issue.

Sources

Taylor & Francis Jstor

Journals Hein Online

Utility of each Source

LEGISLATIONS, CONVENTIONS, ETC.Broad statement of current law, identifies key

sources of that law (statute or cases)

TEXTBOOKSBroad overview of the legal issue, identifies

tension and conflict

CASESEach case deals with a narrower aspect of the

broader issue

ARTICLESFurther depth on a narrow point

Points to RememberHave a research plan. Make lists of sources

read, make copies and highlight relevant cases and statutes, and mark why it is important. You may want to use different colored highlighters for different issues or different positions.

Don’t shortcut your research. It is better to skim the entire text for relevant information rather than just reading headnotes or summaries.

Stay focused. Try not to go onto the next step of your research plan before thoroughly accomplishing the prior step.

Never cite a case in your brief unless you have read it in its entirety and thoroughly understand it.

Keep the weight of authority in mind. Some authority will be more persuasive than others. Cases and statutes are more persuasive than secondary sources, a holding of a case will have more authority than dictum, and binding authority will be more persuasive than that of other jurisdictions.

THANK YOU