Games
Moot Court
For a PDF-version of the text below, see: Moot Court Game (Otto Spijkers, 19 3 2017).
Introduction
The Moot Court will train students in writing a memorial or judgement, and in delivering an oral plea before a bench of judges. Through this, students are expected to learn how to structure legal arguments to convince a judge or to come to a weighed outcome of a legal problem. An explanation on how the Moot Court trajectory is set-up is provided below. In case you have questions, please send an e-mail to Otto Spijkers, at o.spijkers@uu.nl.
Introduction and division of roles
Introduction
At the first meeting, the moot court instructor will explain what we will do in the Moot Court trajectory. He or she will provide general instructions on writing the memorials and preparing for the oral pleadings. This is also an opportunity to ask questions.
During the Moot Court trajectory, the students will be provided with a fictional case between two States appearing before the International Court of Justice. The Applicant State will request the Court to adjudge and declare that the respondent has breached certain obligations. We call these the submissions. There will be four submissions in total. The case, including the four submissions, will be made available before the start of the Moot Court.
Division of Roles
At the first meeting, teams of four students[1] will be formed. When you write your memorial or judgment, you will deal with all four submissions. But for the oral pleadings, students will either deal with submissions 1 and 2, or with submissions 3 and 4. For both, we will need a team representing the applicant, a team representing the respondent, and a team of judges. This makes six teams in total.
The following schedule shows the division of the roles. During the first meeting, students can sign up using the division below. The student who puts her or his name under ‘A.I.1’ will be the counsel for the Applicant and plea submission 1. The student under ‘R.I.1’ will be the counsel for the Respondent. The rebuttal for submission 1 is done by student ‘A.I.2’ and the surrebuttal for submission 1 is done by student ‘R.I.2’. For submission 2, counsel is A.I.3 and R.I.3, the rebuttal and surrebuttal is done by A.I.4 and R.I.4. Submissions 3 and 4 are divided in the same way among the students who are in the third column. The students can state preference for a role, but the lecturers will eventually make sure that all slots are filled.
| Role | Submissions 1 and 2 (I)[2] | Submissions 3 and 4 (II) |
| Applicant | A.I.1. | A.II.1. |
| A.I.2. | A.II.2. | |
| A.I.3. | A.II.3. | |
| A.I.4. | A.II.4. | |
| Respondent | R.I.1. | R.II.1. |
| R.I.2. | R.II.2. | |
| R.I.3. | R.II.3. | |
| R.I.4. | R.II.4. | |
| Judges | J.I.1. | J.II.1. |
| J.I.2. | J.II.2. | |
| J.I.3. | J.II.3. | |
| J.I.4. | J.II.4. |
Submission of the memorials/judgments
All teams that play the role of counsel – applicant or respondent – must hand in their memorial; and all teams that play the role of judge must hand in their judgement. The memorial/judgment must be sent by e-mail to the moot court instructor.
We will now explain for each of the two – memorial and judgment – what must be included in it, beginning with the memorial.
A Feedback Form Plea/Judgment Moot Court will be shared with the participants in advance. This will give you an idea based on which criteria we will determine the quality of the written productions.
Please remember that both the memorial and the judgment must deal with all four submissions.
Memorial
If you are counsel for the Applicant, you must prepare a memorial, in which you present your legal argumentation to support the submissions presented to the court. These submissions are provided in the case; you do not need to invent them yourself. If you are counsel for the Respondent, you should prepare a memorial, in which you present your legal argumentation to argue against those submissions.
The memorial must be structured as follows: an introduction, a statement of fact, a midsection (or body), and a conclusion. The introduction must set out the structure of the plea and list the submissions. The statement of facts must briefly – one page max – summarize the relevant facts. The midsection contains your arguments per submission. Present your arguments in a logical order and make sure that your arguments are supported with authoritative texts, like case law and references to primary sources of international law (treaties, custom, general principles). You are therefore required to find good quality sources apart from the prescribed literature and cases! It is possible to have a primary argument, and a second or third argument in case the court might not be persuaded by your primary argument.
Judgement
If you are assigned the role of judge, you must prepare a judgment instead of a memorial. In this judgment, you objectively go through all the submissions and introduce the arguments in support and against each submission, and reach a reasonable conclusion. This is thus very different from the memorial, which is subjective, in the sense that in the memorial only the arguments in support of one side need to be developed fully.
The judgement must be structured as follows: an introduction, a statement of facts, a midsection (or body), and a conclusion. The introduction should at least contain the structure of the judgment and the submissions put before the Court which the Court will answer. The statement of facts must briefly – one page max – summarize the relevant facts. In the midsection, the Court will need to provide an answer to each of the four submissions. This must be done by weighing the various arguments that could lead to different answers and by giving a motivated outcome based on the Court’s objective analysis. The Court must show the various steps it takes: the question that must be answered, the various arguments found in literature and case law, the evaluation or weighing of the various arguments and the answer to the question the Court finds most correct. In the conclusion, the Court must give an answer to each of the submissions put before it.
To see what a ruling of the International Court of Justice looks like, visit www.icj-cij.org. Also, use the prescribed cases in the reader to find inspiration for a weighing of arguments and a motivated judgement.
Tips
These tips apply to the writing of the memorial and of the judgment.
Make a work plan and start on time. It is essential that members of the group communicate together on the division of labour. If you are a team of four students, it might make sense to develop one submission each. Even after dividing the submissions it is essential that the group keeps checking the work of each of the members to make sure the plea forms a logical line of argumentation. Appoint one member of the group for the final editing of the plea.
Based on your readings, create a list of arguments per submission. Make sure that you emphasize the arguments that support your case and try to refute the arguments that go against your position. It is not necessary to repeat the facts of the case in the midsection of your memorial or judgment. Only where some facts are supporting your position it would make sense to highlight these. You are not allowed to make up new facts.
Please be reminded that you are expected to use legal arguments. Of the following examples, the first is not a legal argument. The second example gives the same message but is a legal argument.
- Example 1: ‘States should not kill civilians on purpose during an armed conflict because that is immoral.’
- Example 2: ‘States should abstain from killing civilians as a method of warfare during an armed conflict because the Geneva Conventions prohibit such acts’.
Oral pleadings
Please have a look at the schedule below. Per submission, the applicant and respondent will each have eight minutes for their first round which must be used completely.
Schedule
As said, the written memorial and judgment must deal with all four submissions. However, during the oral pleadings students will only plead either submissions 1 and 2, or submissions 3 and 4.
| Session | Legal question | Counsel/Judge | |
| Moot court session – Part I, First Half – 45 min. | 1st question | Judges (J.I.1., J.I.2., J.I.3., J.I.4.) | |
| First round plea | 8 min | Applicant A.I.1. | |
| 8 min | Respondent R.I.1. | ||
| (consultations parties) | 4 min | ||
| Second round plea | 5 min | Applicant A.I.2. | |
| 5 min | Respondent R.I.2. | ||
| (Consultations judges) | 5 min | ||
| Court’s ruling | 5 min | Judges (J.I.1., J.I.2., J.I.3., J.I.4.) | |
| Break | |||
| Moot court session – Part I, Second Half | 2nd Question | Judges (J.I.1., J.I.2., J.I.3., J.I.4.) | |
| First round plea | 8 min | Applicant A.I.3. | |
| 8 min | Respondent R.I.3. | ||
| (Consultations parties) | 4 min | ||
| Second round plea | 5 min | Applicant A.I.4. | |
| 5 min | Respondent R.I.4. | ||
| (Consultations judges) | 5 min | ||
| Court’s ruling | 5 min | Judges (J.I.1., J.I.2., J.I.3., J.I.4.) | |
| Moot court session – Part II, First Half | 3rd Question | Judges (J.II.1., J.II.2., J.II.3., J.II.4.) | |
| First round plea | 8 min | Applicant A.II.1. | |
| 8 min | Respondent R.II.1. | ||
| (Consultations parties) | 4 min | ||
| Second round plea | 5 min | Applicant A.II.2. | |
| 5 min | Respondent R.II.2. | ||
| (Consultations judges) | 5 min | ||
| Court’s ruling | 5 min | Judges (J.II.1., J.II.2., J.II.3., J.II.4.) | |
| Break | |||
| Moot court session – Part II, Second Half | 4th Question | Judges (J.II.1., J.II.2., J.II.3., J.II.4.) | |
| First round plea | 8 min | Applicant A.II.3. | |
| 8 min | Respondent R.II.3. | ||
| (Consultations parties) | 4 min | ||
| Second round plea | 5 min | Applicant A.II.4. | |
| 5 min | Respondent R.II.4. | ||
| (Consultations judges) | 5 min | ||
| Court’s ruling | 5 min | Judges (J.II.1., J.II.2., J.II.3., J.II.4.) | |
During the pleadings the judges must ask questions. All judges must ask at least one question, but preferably more. The clock will not stop during the questions by the judges and answers given to these questions. After the first round of pleadings, there will be four minutes for deliberations and consultations with the entire group and both parties will have five minutes for the second round in which parties respond to what has been said in the first round. Although this slot is shorter, it is less easy to prepare since you will argue against what the other party has said. Again, the clock will not be stopped when judges ask questions or when these questions are answered. The judges will subsequently leave the room for a few minutes to deliberate and will come back with a motivated judgment. Contrary to the judgment submitted earlier in written form, this oral judgment must be based on the arguments put forward by the two parties during the oral pleadings. It thus cannot be prepared beforehand at home.
A Feedback Form Oral Presentation Moot Court Counsel and Judge will be made available to the participants in advance. This will give you an idea based on which criteria we will determine the quality of the oral pleadings.
The role of the counsels
The memorial will form the basis for the oral proceedings. Prepare a plea based on the information of the written production. A good plea is most certainly not a memorial read out loud! Make a clear division of labour in your team (which member will address which question) and decide with your team which arguments are the most important or most convincing, and which arguments must be used during the first round and which during the second round.
Make sure that your plea remains within the time-limit and that you use the full time allotted to you. It is not necessary to repeat the facts: they are known to all parties and to the judges. Only where repeating or emphasizing a certain fact will make your legal argument stronger, it can be useful to repeat that fact. Listen closely to the other party’s plea and try not to repeat each other. If your opponent made a point that you wanted to make (albeit in the opposite direction), only point out where you disagree.
Make a plan for your strategy: note that you will have two rounds per legal question. Use the time given to you wisely; you have eight minutes in the first round that you must use entirely and five minutes in the second round.
Be polite in answering the Court’s questions. If you intend to answer the Court’s question later in your plea, you must ask permission to do so. If the Court desires an answer promptly, you must do so. Remember that the Court will decide based on the arguments given. Make sure your plea is nice to listen to and that your arguments are presented in a clear and structured way.
The role of the judges
The judges take the lead during the sessions. This means that they open sessions, close sessions, decide on the proceedings, make sure that the case is pleaded in a correct and respectful way (including in addressing the Court!), and correct the counsel if they involve unrelated issues. One of the judges will be the President of the Court, one of the judges will be appointed registrar (it must be clear before the session which student will take which role). The President takes the lead, opens and closes the session. The registrar keeps track of time and notifies the counsel when there is one minute left.
At the end of the session, the Court has time to deliberate and must return with a motivated judgement. The President of the Court will present the judgement. This judgment is not the written judgment submitted earlier, but it must be based entirely on the arguments presented by the counsel for both applicant and respondent during the oral pleadings.
Tips for the oral proceedings
Please keep the following in mind:
- Refer to the members of Court with ‘your honours’ or ‘members of Court’ and to the President as ‘mister President’ or ‘madam President’;
- The President is in charge and determines who can speak and at what point. Do not start speaking without permission;
- The registrar keeps track of time and communicates to the counsel when there is one minute left of his or her time (for example by raising a finger or showing a piece of paper with the text ‘1 minute’);
- Counsel must stand when addressing the Court;
- At the start of the plea, counsel must introduce him/herself and state the party he or she represents;
- To structure your plea, give a short overview of what you will say and in which order. This will make listening easier;
- Make sure your plea remains within time. It would be a problem if you cannot give your strongest argument because you ran out of time.
- Speak clearly, not too fast, beware of your intonation and direct your speech to the judges;
- Do not read your plea from paper! It is always better, clearer and more pleasant to listen to someone who is telling something rather than reading aloud;
- It is not necessary to ‘use footnotes’ during the oral presentation, but you can refer to important cases or literature;
- End with a strong conclusion that will convince the judges (if you have time, sum up your main points);
- Be prepared for questions. Be polite in answering the questions. If you want to answer a question at a later point, ask permission to do so;
- Have fun!
[1] This could be more or less, depending on the number of students in the group. If there are more than 24 students in the group, the teams of judges will consist of more than 4 students.
[2] In the written judgment/memorial, all students will deal with all four submissions. Only for the oral pleadings must you deal with either submissions 1-2 or 3-4.
14 september 2016