Post #14: PART II: All About Mooting (Plus Tips, Tricks, and What to Expect!)
So, we have covered a bit about writing introductions for submissions, under PART I of the Mooting Guide! Shall we continue?
PART II aims to continue our writing submissions. Please remind yourself of my disclaimer - these are simply my tips and tricks, so be mindful and ask your Professor when you are not sure about something!
Please do not copy the submissions or examples listed here. These examples are to give you ideas, and suggestions, not for copying or extensive appropriation.
Fariya's Guide to Mooting Successfully - Part II - Writing Your Submissions
(Please note these comments are geared towards Canadian mooting, but are still relevant for the Dual JD students!)
Overview
Writing submissions can be very difficult. We tend to want to copy large chunks of the factum, because we have worked so hard on it! Remember that your factum, though brilliant, isn't very conversational. Effective submissions are often straightforward, conversational, and to the point.
Submissions can also be challenging to write because we feel inclined to respond directly to what our friends on the opposing side have said. If you think about arguments outside of law, only a small amount of the battle is won by saying the other side is wrong. Advancing your own arguments persuasively will serve you better!
Here are some tips to write your submissions. Take these with a grain of salt - this is just my advice, and tips.
1. Keep Submissions short and to the point.
A common theme in great oratory skills is short, to the point statements. Think about what makes a good speaker or lecturer (or Professor!) in general. Professors that do not ramble, have long-winding statements that are hard to write or type to, and who speak slowly, loudly, and clearly, are the best. Your submissions are a persuasive summary of your factum, and should be written with purpose and direction.
Many people have different methods of writing their submissions. Some people like to copy the factum directly, and then edit it down. I work from the opposite method - I re-read my factum, and then I close it, take a blank sheet of paper, and say to myself "If I could only get out three points to make my case, what would they be?". I write those three points in simple, straightforward language:
1. First, .....
2. Second, ....
3. Third....
And those become my main submissions and/or mantra! I consider this to be my skeleton. Then I ask myself: "If I could think of one of two supporting evidence or points - maybe a case that is very analogous, or a set of facts that supports this idea, what would they be?" and I jot those down.
1. First, .....
Supporting: (a) case R v Gomboc
Supporting: (b) case R v Plant
2. Second, ....
Supporting: (a) Facts of hypo - distinguishing elements of Smart DRA
Supporting: (b) Facts of hypo - officer's conduct & behaviour
3. Third....
Supporting: (a) Academic evidence - article by Walker J on section 8 privacy
As you can see, I am building up my skeleton. Rather than starting from my factum, and trying to whittle out what isn't important (which is hard, because everything is important!), I'm building up my arguments. While this method doesn't work for everyone, I like this method because it forces me to get to the heart of the important points. Once I know which supporting evidence I want to use, I might go to my factum, and use it to start expanding on the supporting evidence. I would also keep a copy of this point form sheet for my "hot sheet" (see PART IV of the Mooting Guide!)
2. Limit your references to the opposing counsel factum
There is a strong inclination to read your opposing counsel's factum, and want to comment on all the things they say incorrectly in their factum. As I mentioned in PART I of the Mooting Guide, submissions can also be challenging to write because we feel inclined to respond directly to what our friends on the opposing side have said. As an appellant, we tend to want to clarify the areas we feel the Respondent misquoted us. As Respondents, we tend to want to attack the Appellant's arguments directly, and refute their evidence.
If you think about arguments outside of law, only a small amount of the battle is won by saying the other side is wrong. Good advocates, persuasive advocates, have the ability to convince you that they are, in fact, correct in their position. In other words, your focus should be on advocating your own position, and much less about attacking the other side. Attacking the other side comes across defensive, and doesn't make your point powerful. This is not to say you can't address the other side's points, but strong advocacy is about persuasion.
The funny thing is, you can address many of the other side's points without actually referencing the other side. By referencing the other side, you are actually drawing attention to strong argument the other side has written, which you don't really want to do in a moot.
Let me give you a couple of examples:
The Respondent has stated at paragraph 16 of their factum that police are justified in doing random traffic stops to search for drunk drivers because this fulfills the government's policy objective to ensure safe roads. However, the Appellant submits that random traffic stops should not be used to cover inappropriate police profiling and encourage section 8 Charter right breaches.
Now, this is a great statement. But how can we improve it?
- We don't need to reference the other side
- We don't need to reference the other side's factum - such a reference will actually encourage the judges to go to the Respondent's factum and read it, which distracts the judges from the great point YOU are trying to make.
- We can shorten the sentences.
Random traffic stops to search for drunk drivers may fulfill the government's objective to ensure safe roads. However, the Appellant submits that random traffic stops should not be used to cover inappropriate police profiling and encourage section 8 Charter right breaches.
Now, we have the same great point you wanted to make, we haven't pointed out the other side's factum, and we have shortened the sentences to save you a bit of time.
Lets try another one:
The Respondent has stated at paragraph 36 that the correct test is whether a reasonable officer would have had reasonable and probable grounds to arrest the accused. The Appellant submits the Respondent has erred - the correct test is whether a reasonable person, standing in the shoes of the officer, would have developed reasonable and probable grounds to search the accused's car.
The Respondent has also stated, at paragraph 12 of their factum, that the evidence provided in Academic Article A is not on point because it discusses profiling. However....
We anticipate our friends will argue that ..../ Our friends have argued that ...
Right from the get-go, the Appellant in their submissions sounds defensive. As a judge, I'm hearing a lot of energy being expended into responding to the other side. Remember: the judges have read your facta, and also have a bench brief. They know the correct legal tests, and the relevant law. If there is something they are unsure of, they will ask you. If you can save time by not addressing the other side, why not do that?
For example, we can change the first paragraph to:
The correct test for the court to apply in this case is whether a reasonable person, standing in the shoes of the officer, would have developed reasonable and probable grounds to search the accused's car. In the case at hand, there was several pieces of evidence contradicting the officer's opinion that the accused may be carrying a weapon. For example ....
Now, this submission is so much more persuasive. It still addresses what the correct test is, but goes onto apply the law and provide supporting evidence based on the facts. It is not enough to show the judges the other side is wrong. You must also demonstrate why you are correct.
Same with the second paragraph. Addressing why the Respondent has refuted your article is not necessary. You can simply say:
The Appellant cites the evidence in Academic Article A, for its content on car profiling, not racial profiling. The author supports the Appellant's assertion that officers often make snap judgments based on the behaviour of a driver....
In the adjusted argument above, you are tackling the other side's issue head on, but not referencing them.
Lastly, I tend to be very wary of anticipatory arguments - arguments you expect the other side to raise. The reality is, you don't really know if they will raise that argument, and you encourage the judges to argue with you about something they may not even agree with, or find contentious, just because you have raised it. I caution students against saying things like "we anticipate our friends will argue". Commenting on what your friends have already argued is less contentious.
3. Use case law persuasively
Case law is the meat (or tofu, if vegetarian!) and potatoes of your arguments. Case law allows you to support or distinguish your case, and is persuasive to the Windsor Supreme Moot Court (which is considered to be higher than the Supreme Court of Canada and is not bound by SCC decisions). Citing cases can be very effective, but be careful about quoting long, verbose quotes. Only use cases for the relevance or persuasive aspects of the case. For example, if the case is helpful because it is very similar on the facts, have a short statement regarding the case. For example:
In the 2009 Supreme Court of Canada Case, R v AABXD, the accused was stopped at a random traffic stop, and found to be in possession of a firearm. The court in that case, held that a random traffic stop resulting in searches was unconstitutional. Similarly, in this case, Office Cahill stopped the accused at a random traffic stop, and proceeded to conduct an unauthorized search that yielded two pounds of marijuana.
In the example above, there is only one or two lines about the case. I have not included an extensive fact summary or holding. I have, however, applied the case I am quoting to the case at hand. The persuasive case is quoted in my appendix in my factum, and I would have another sheet with a list of the cases I will reference in my oral submissions and factum. If the judges ask me more about the case, I would be able to provide them with the year of the judgment, the level of court, a brief summary of the facts. I would also have the ratio, and a quick point about why I am bringing up the case in the first place.
This is not to say you should never quote judges - there are instances where longer quotes are very effective. But limit those references to the moments where they are very impactful.
I do hope this helps with drafting your submissions! More tips to come! Part III on writing conclusions, PART IV for tips on strong oration & answering questions, and PART V for frequently asked questions & other tips!
~ Fariya Walji
2013-2014 PMP Student Coordinator
* Disclaimer: The above post is entirely of my own opinion, and was not counseled by Windsor Law or reflective of the thoughts, opinions, or attitudes of any other Windsor law staff or students. Individuals reading this post should read it only as a personal opinion piece, not as academic or career advice.