How to Moot in Easy Steps – Part One – Research

A good performance in a moot does not only require skills in advocacy but also skills in legal research. Before beginning in-depth research, it is first important for law students to identify the legal issues which a moot problem is concerned with. For example if the moot problem involves a fictitious contractual dispute then there are certain broad issues that might be raised in the formation of the contract: was there offer and acceptance, was there valid consideration, were the terms of the contract compliant with UCTA?

Once the broad areas of dispute are identified the student can then begin to hone in on the specific technical issues of law that arise. At this point it is advised that a student start by turning to the relevant sections in a leading practitioner’s book. It may also be useful to have a good student textbook that summarise the general principles of law in the area, especially if it is one that the student has not studied before.

By using both academic and practitioner’s textbooks, the student should be able to identify and then list out the relevant authorities to a particular point of law. Often it may also be a good idea to use legal databases such as Westlaw to supplement the identification of relevant authorities as even practitioner textbooks may miss potential cases, especially new ones. Databases such as Westlaw are often equipped with search tools for narrowing authorities based on the facts of the case and the issues in dispute. Further there are case overviews for exploring related authorities that were cited and where this particular case was itself cited.

Armed with a list of relevant authorities the next step is to conduct detailed research by reading the case reports either in the law reports or electronically. Not all authorities on the list will be particularly useful. Focus should be directed on those cases which will be significant – these can be identified on the basis of how often they are cited by other cases, by how recent they are, and by how authoritative they are based on whether they were decisions of a lower court or an appeals court. Further it is important to distinguish between those cases which may be relevant in terms of obiter dicta (either by dissent or hypothetical), and those cases are directly on point because of the facts – whereby the decision on the point of law is ratio decidendi.

If the disputed point of law has not been addressed in any particular detail by the courts then there may be a need to use other types of authority such as academic arguments found in law journals and leading textbooks. It is important to remember, however, that these types of authority are secondary sources and will be considered far weaker and less credible than cases.

Finally, the last step in learning relevant research to help you learn how to moot is to start constructing legal arguments for the submissions by using the relevant authorities. It is important to focus on the grounds of appeal and to make a positive case for your arguments first. Of course, it is worth considering the submissions that your opponents are likely to make and to think about pre-empting them but a lot of that effort can be reserved until there has been an exchange of skeleton arguments.

This entry was posted in LEGAL.

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