The following student resources are available to accompany this book:
- Practical exercises - Download the documents with guidance for the activities referenced throughout the text
- Answers to self-test questions - The answers are provided along with a commentary to help understand how and why the correct answer was reached
- Glossary - A useful one-stop reference point for all the keywords and terms used within the text
- Videos - Video clips of students participating in mooting, negotiations, and presentations will bring these skills to life and will provide examples of good practice to emulate and bad practice to avoid
Video clip: Mooting 01
This clip shows the opening of the moot. Note how the mooters rise when the judge enters. All then sit, apart from senior counsel for the appellant who remains standing and waits for an indication that the judge is ready for him to begin his submissions. Senior counsel for the appellant then introduces all the mooters, even though they will later introduce themselves, and identifies the party for whom he is appearing. Notice that he refers to the appellant by name; this can add clarity. He also offers a summary of the facts of the appeal to the judge, before advising the judge of the grounds of appeal arising from these facts. He then identifies the point of appeal that he will be addressing and the submissions that he will be presenting to the court in furtherance of this. Note that senior counsel outlines his submissions to the judge; this can be useful even if you are using a skeleton argument. It is good practice to seek permission from the judge to commence the body of your submissions. Overall this is a well-paced and clear opening that will have created a good impression of the mooter in the mind of the judge
Video clip: Mooting 02
This clip shows the senior counsel for the appellant closing his submissions and handing over to the junior counsel. Notice that he repeats his ground of appeal and states junior counsel's ground of appeal to add continuity to their submissions. In this moot, the grounds of appeal follow on from each other for the appellants: (1) there is a contract and (2) it was not revoked. This means that the respondents will have to put alternative grounds, i.e. ones that do not follow on from each other: (1) there is no contract and (2) even if there was a contract, it was revoked. Junior counsel then opens with her introduction and submissions. Note that, unlike senior counsel, she does not list her submissions but refers the judge to her skeleton arguments. Either approach is perfectly permissible.
Video clip: Mooting 03
This clip shows the closing by the junior counsel. Notice that she restates senior counsel's conclusion as well as her own and links these together in inviting the judge to uphold the appeal. This closing was particularly effective in the way that it incorporated the facts of the appeal when dealing with the issue of the timing of the purported revocation. Junior counsel invites the judge to uphold the appeal. It is good practice to remind the judge of your desired outcome as well as making sure that he does not have any further questions before you sit down.
Video clip: Mooting 04
In this clip, senior counsel for the respondent introduces herself and her partner, even though already introduced by senior counsel for the appellant. This is standard mooting practice. In addition, she asked the judge for permission to amend the submissions in the skeleton arguments in response to particular points raised by the appellants. As the respondents' job is to reply to the points raised by the appellants, it will sometimes be the case that submissions become unnecessary since they relate to points which have not been raised by the appellants. Equally, the respondents may need to address a point raised which they had not anticipated. In such cases, it is polite to orientate the judge to the changes that are forthcoming. This is the best approach, otherwise the judge will have difficulty in following your revised argument.
Video clip: Mooting 05
This clip shows the closing by the senior counsel for the respondent and the handover to junior counsel. Notice that senior counsel emphasises that the junior's ground of appeal is an alternative to her own. As explained in relation to clip 2, grounds of appeal will either follow on from each other, as they do for the appellants in this moot, or be alternatives to each other, as they are for the respondents. It is good practice to signpost the relationship between the two grounds of appeal. This is particularly important with alternative grounds as it assists the judge who could otherwise become confused if it appeared that junior and senior counsel were making inconsistent submissions.
Video clip: Mooting 06
This clip shows the closing of the appeal for the respondents by the junior counsel. He outlines senior counsel's ground of appeal and then his own, emphasising again that they are alternatives to each other. Notice that he invites the judge to dismiss the appeal, reminding the judge that to do so would uphold the decision of the trial judge. As with all the mooters in these clips, he demonstrates impeccable etiquette by ensuring that the judge has the opportunity to ask any further questions before he takes his seat.
Video clip: Mooting 07
This clip demonstrates both good and bad practice in citing a case. The clip starts with good practice. Note how senior counsel for the respondent cites the case properly, i.e. how it should be said, not how it is written (see page 436). She offers the judge a summary of the facts and in this instance, he accepts. The judge may not always want a summary but you should have one prepared in case it is needed. Note that the summary is concise, but covers all the key facts of the case and, most importantly, that she goes on to apply the legal principle to the facts of the appeal. In the example of bad practice which follows, senior counsel demonstrates poor citation style: using 'versus' instead of 'and' and reads the citation as it is written. She then launches straight into the case but merely states its outcome leaving the judge none the wiser in terms of the facts or legal principle. There is no suggestion that she is going to apply this to the appeal in hand.
Video clip: Mooting 08
This clip demonstrates both good and bad practice in guiding the judge to a particular point when quoting from a case. In the example of good practice, junior counsel for the respondent orientates the judge to the fact that the citation of the case has previously been provided. This is important: a common mistake made by inexperienced mooters keen to adhere to etiquette is to provide the full citation for a case every time it is mentioned. There is no need to do this: cite it in full on the first occasion only. Junior counsel goes on to provide detailed directions of the page number, paragraph letter and the words with which the quotation commences, pausing at each stage to allow the judge time to locate the correct place. In the example of bad practice which follows, the judge is given neither time nor clear guidance. Junior counsel states that the quotation is on page 42 and launches straight into it. Two interventions are needed from the judge before sufficiently clear information is provided. Note also that counsel did not advise the judge that the case had been cited earlier.
Video clip: Mooting 09
This clip demonstrates the correct way in which to direct the judge to a passage in a case using a bundle. Notice that junior counsel for the appellant still provides the full citation of the case and goes on to direct the judge to where it can be found in the bundle. This method of using tabs to separate cases is usual as is numbering the pages of the bundle. You must take care to make it clear to the judge, as demonstrated in this clip, whether you are referring to the page of the bundle or to the case itself. Note also that junior counsel pauses in her directions to allow the judge time to find the relevant material.
Video clip: Mooting 10
This clip demonstrates an effective approach to distinguishing a case. Note the good practice of senior counsel for the appellant throughout the clip: he anticipates the submissions of senior counsel for the respondent (important for appellants), he defines the legal terms used (invitation to treat), he cites the case correctly and offers the judge a summary of its facts. The main focus of this clip, however, is the way in which senior counsel uses the facts of the moot to distinguish it from Fisher v. Bell; a useful way to avoid being bound by an awkward precedent. Senior counsel states the principle from the case and the facts which gave rise to it. He then goes on to extrapolate specific facts from the appeal to demonstrate how it differs from the factual situation in Fisher v. Bell.
Video clip: Mooting 11
This clip demonstrates good and bad practice in responding to a question concerning a point that senior counsel for the appellant had planned to raise later in his submissions. It is good practice, as demonstrated in the clip, to adapt your submissions in response to the judge's question. Senior counsel advises the judge that he had been planning to address the issue in any case, thus demonstrating awareness of the importance of the point and emphasising his ability to move away from his planned structure. Notice that in addressing the case, senior counsel does not need to rummage through his papers to find his notes on Carlill, thus suggesting that he is sufficiently familiar with his material to be flexible in its delivery. This will impress the judge. It is not good practice to stick rigidly to your plans. In the example of bad practice, senior counsel responds to the judge's questions by effectively saying 'I'll be doing that later'. Not only does this suggest rigid adherence to a prepared script, but it is also impolite to brush aside the judge's question.
Video clip: Mooting 12
This clip demonstrates the importance of taking time to formulate a composed response to the judge's question. This may take the form of asking for a moment to consult with your partner, as illustrated in this clip, or you may ask for time to consult a case or your notes. Even repeating the question to the judge gives you a few moments to focus your mind and compose a considered response. Hopefully such strategies will prevent the sort of rambling and uncertain response demonstrated by junior counsel for the appellant in the second part of the clip. Here, she starts to answer immediately but it is clear from her style and the lack of sensible content that she does not know where she is going with her response.
Video clip: Mooting 13
This clip demonstrates good practice when unable to answer a question. One of the greatest fears that mooters express concerns inability to respond to a question from the judge. If you are asked a question that you are not able to answer, even after taking time to consult your partner or your notes, then you may communicate this politely to the judge as demonstrated by junior counsel here. The judge will appreciate this; it is better to say that you do not know and ask to move on than to waffle mindlessly to the judge (who will be able to tell in any case that you did not know the answer).
Video clip: Mooting 14
This clip demonstrates good practice in dealing with a question that you do not understand. When confronted with a question that does not make immediate sense, it is a mistake made by many mooters to 'have a go' based on their guess as to what the question might mean. It is far better, as demonstrated by senior counsel for the respondent in this clip, to ask the judge to rephrase the question. A further means of seeking clarification is to rephrase the question yourself and to ask the judge if that is what they mean. As the clip demonstrates, these approaches can be used together. Note the way in which senior counsel thanks the judge for his assistance before moving on to tackle the question. If you are still unable to understand the question, you will need to ask the judge if you can move on (as demonstrated in clip 13).
Video clip: Mooting 15
This clip demonstrates good and bad practice in referring to others present in the courtroom and presenting submissions. In the example of good practice, seen first, senior counsel for the respondent refers to the judge appropriately (My Lord in place of the judge's name/Your Lordship in place of 'you'). She is also polite in referring to her opponent as 'my learned friend opposite' or 'senior counsel for the appellant'. She does criticise the senior counsel for the appellant's understanding of the law, but this is also done in polite and professional terms as she suggests he may have 'become somewhat confused'. This is a contrast to the approach taken in the second part of the clip. Here senior counsel accuses her opponents of misunderstanding the law and misleading the judge. She refers to opposing counsel as 'they' and 'counsel over there' accompanied by sweeping hand gestures. Her bad practice is compounded by addressing the judge as 'Your Honour' and reference to her 'argument' and 'feelings' rather than her 'submissions'.
Video clip: Mooting 16
This clip shows the good practice in closing that has already been demonstrated in clip 6. Note the clarity of speech and the balanced pace of delivery. The example of bad practice which follows uses exactly the same words but demonstrates several instances of poor courtroom etiquette thus emphasising that it is not just the content of the speech that is important, but also the way in which it is delivered. In the example of bad practice, junior counsel is visibly reading from a script which is held up obscuring his face. His pace is too fast and there is no eye contact with the judge. His tone is monotonous and he increases in volume. He appears nervous; he is flicking a pen and takes a noisy slurp of water. Nerves are unavoidable when mooting, particularly for the inexperienced, but try to avoid manifesting your nerves as far as possible. Under no circumstances should you ever remove your jacket (unless the judge tells you that you may). Here, the judge's comment should have alerted junior counsel to his breach of etiquette, but he chooses to ignore the judge's words (further bad practice) and continues, sitting down before the judge has an opportunity to ask any further questions. The clip also demonstrates bad practice on behalf of senior counsel for the appellant who is visibly bored and distracted. Once your role in the moot is complete it is polite to sit quietly and look interested.
Video clip: Negotiation 01
This clip shows the opening of the negotiation. Both teams introduce themselves and clearly identify the party that they represent in the negotiations. Team B makes a clear statement of the overall aim of the negotiation (to reach agreement on terms of access to children). Team A responds by agreeing that the well-being of the children is paramount. This sets the tone of the negotiation as one involving shared goals. Finally, Team B offers to put forward an agenda for the negotiation. You can see how this progresses in clips 3 and 4.
Video clip: Negotiation 02
This clip demonstrates a poor opening to the negotiation. While Team B introduces itself and the party it represents, Team A interrupts and disagrees with one of Team B's opening statements. This gives the impression of immediate intransigence and sets up the negotiation as a confrontational exercise. It immediately puts the opposing team on defensive and does little to set up the later pursuit of shared acceptable outcomes which is the essence of good negotiation.
Video clip: Negotiation 03
This clip demonstrates the use of an agenda in the opening stages of the negotiation that sets out the issues to be discussed. This can be an excellent device for establishing the structure and content of the negotiation. Here, Team A sets out three points that they wish to address. Team B also has the opportunity to add points of their own. The use of an agenda was successful here as Team B were in agreement with the points identified by Team A and Team A did not object to Team B's preference for discussing the particular point which they had added first. Not only did this enable the teams to identify and prioritize issues, it established an amicable and cooperative tone that continued throughout the negotiation.
Video clip: Negotiation 04
The use of an agenda is not always successful. It can lead to a 'negotiation within a negotiation' if the teams disagree about the points to be discussed or, more commonly, the order in which they are to be tackled. Here Team A sets out its agenda as before and Team B attempts to introduce a new point. However, this meets with disagreement from Team A. Disagreement at this stage can set the negotiation off to a very bad start so it is important to consider how important it is to your team to 'win' the argument about the agenda as it may ultimately be counter-productive and lead to an acrimonious negotiation.
Video clip: Negotiation 05
It is important to make use of the facts from the scenario to explain your position to the other team. This may help you to achieve what you want to achieve as it is sometimes easier for people to agree to something when they understand the reason that it is important. Equally, if you tell the other team why you want something as well as what it is that you want, they may be able to suggest alternative ways of achieving the objective.
Here Team A proposes a potential solution to the problem of access. This is refused by Team B; at which point Team A suggests (wrongly) the reasons behind that refusal. However, Team B then goes on to explain the reasons why the children were so afraid of their father and proposes an alternative which is refined and then accepted by Team A. Team B are careful not to go beyond the scope of their client's instructions, so they do not agree to Team A's proposal other than agreeing to seek further clarification from their client.
Video clip: Negotiation 06
In this clip, Team B refuses to accept Team A's proposal for access without giving their reasons for that refusal. This creates a situation in which agreement cannot be reached, since Team B flatly refuse the proposal. In the end, the teams agree to move on without reaching resolution on the point in question. If Team B had explained their position more explicitly this may have allowed room for Team A to vary their approach in the light of the facts known to Team B.
Video clip: Negotiation 07
It is easy to reach a situation in a negotiation where the teams reach a deadlock, i.e. one team wants something that the other is not prepared to give them. This can escalate into an acrimonious situation and, in the worst cases, end the negotiation without agreement. Here, it looks as if the teams are going to reach such a deadlock, but Team A invites Team B to compromise and asks the open question 'Is there any other solution that you can come up with?' This reintroduces the spirit of cooperation into the negotiation and allows it to continue. Tentative agreement is reached on the final point (subject to client confirmation). As Team B comments, it would be a shame for the negotiation to break down.
Video clip: Negotiation 08
In this clip, both teams stick to their positions and there is no agreement reached. Neither side offers alternatives or invites the other side to make a suggestion for consideration. Since there is no prospect of resolution while both teams stand their ground, the only option is for the teams to seek further instruction from their respective clients. There are no creative solutions proposed here.
Video clip: Negotiation 09
It is important to get an appropriate compromise between standing your ground to ensure that you achieve a good deal for your client and being prepared to compromise so that the other party is also able to obtain a satisfactory outcome. Here, we see Team B applying pressure to Team A to agree to a set of terms that do not seem to be particularly favourable. Team A do well to resist this pressure. Notice that they do not try to tackle the points of the negotiation themselves but merely state that they feel pressed to accept terms that are not favourable to them and reiterate the concessions that they have already made in the negotiation. This places the emphasis on Team B to make the terms of the agreement more favourable to Team A to ensure that an agreement is reached. Team B choose to take this latter option and do this well by emphasizing their willingness to make concessions. It is important that teams do not feel pressured into accepting terms that will be unacceptable to their client.
Video clip: Negotiation 11
This clip shows a common problem that can arise in a negotiation when the members of a team disagree about the way to respond to the opposing team. Here, Team B have an internal dispute about whether or not to accept Team A's proposal which continues at length. Team A does well to offer a short break in the negotiation to allow Team B to agree its position. You might like to think about the options available to the dissenting team member in this situation: should he have interjected to prevent his colleague agreeing to something without consensus and risk starting an argument with his partner or should he allow the negotiation to continue even though he fears that they have agreed to unfavourable terms?
Video clip: Negotiation 13
Team B is summarizing the points of agreement with a view to closing the negotiation but Team A reopen active negotiations by rethinking a previously agreed point. This prevented the negotiation from concluding. It is often the case that the close of the negotiation approaches and one or both teams will become anxious that they have missed something or that they could have got a better deal. This causes them to reopen points that have been agreed or to introduce new points into the negotiation. This is usually a mistake as there are only two options here: (a) that the point is something that was forgotten during the main body of the negotiation or (b) the team is trying to get a better deal at the last minute in the hope that the opposing team will be more likely to agree because they are so close to getting an agreement. Neither of these options shows the team in a particularly good light so it is something that is best avoided by good planning and practice.
Video clip: Negotiation 14
Here, Team B reflects well on the preceding negotiation, acknowledging their strategy and the points that they negotiated whilst remaining mindful of the other side's objectives. This demonstrates a mature approach and should enable the team to build on the points of good practice and address any weaknesses in future negotiations.
Video clip: Negotiation 15
Here, Team B's reflection concentrates more on their uncompromising and pressurising strategy that achieved their desired outcome while failing to appreciate that the other side also had aims and objectives. This 'win at all costs' approach does not recognize that negotiation involves shared outcomes.