Dr. Patrick Ryan

Mooting Instructions

WHAT IS MOOT COURT?

Mooting allows students to practice making oral arguments to convince a panel of judges to agree with them on a point of law.  It replicates elements of oral arguments and written submittions presented to appellate courts - such as the the Supreme Court of Canada. We will break into three groups of approximately 20 students on Mondays to moot leading Canadian cases. 

WHY ARE WE MOOTING?

Every case we will study in this course (every case we will moot) was a significant legal event in shaping the doctrines, tests, principles, and interpretive frameworks for law as it effects children, youths, and families in Canada today.

Mooting provides a situation that develops verbal skills, reasoning and anlaytic ablities, and the recall of substantive factual information about the law. It will also provide a weekly focal point as you prepare to write case brief paper in mid-February and for the final exam in April. Case briefing and mooting are inter-related skills and they are the primary educational vehicles of our course.

Over the term students will have a chance to play all roles. The most important point of assessment will be your level of effort and preparation. Every Wednesday in Lecture, I will provide you with a review of the next case's facts, legal issues (or questions), what the court held and why it matters for childhood and youth in Canada. Along with the mooting preparation homework, the reading, this lecture will prepare you for your assigned role.

It is perfectly 'ordinary' for people to feel anxiety when they are asked to role-play - that is partly because the learning experience is intense. There is a strong relationship between your effort before and during the moots, and the degree to which you will learn the case law and perform well on the final exam. These disputes are inherently interesting and memorable, and their outcomes changed the lives of countless Canadians.

WHAT ROLES WILL WE PLAY?

1) Counsel for the Appellant
2) Counsel for the Respondent
3) Justice
4) Bailiff (Time Keeper & Moderator)
5) The Public

Counsel for the Appellants and Respondents do not address each other directly during the moot exercise, they address the Justices - the Court. The job of counsel is to frame the legal question for the Justices, and explain why the they should answer this question in their client's favour. 

In their opening statements counsel will say things like - "Your Honours, today the issue before this court is..."  and then provide an answer to this issue that is conducive to what their side hopes to achieve. 

We think there are five things students playing counsel and justice might do to construct their arguments and questions:

1 - Reference the legislation (or other forms of law) cited in the court opinion (the reading) and interpret it to support your stance or inform your questions and decision if a Justice.
2 - Review the legal questions presented in the case. How can you answer these questions in a way that supports your stance, or informs your questions and decision if a Justice?
3 - Frame the facts of the case in a way that produces a legal question that you can answer in a way that supports your side if a Counselor.  And if you are Justice - it is perfectly 'real' to take a side and construct a question that frames the issue in a way that prefigures who is likely to win.
4 - Borrow reasoning from the court opinion that supports your stance.  Sometimes this might be from lecture; sometimes from the dissenting opinions.
5 - Connect your claims, questions (etc.) to how the legal issues and their resolution will impact children and youth, and/or larger social and political relationships.

On appeal, counsel does not object to what the Justices are saying, or what opposing counsel is saying - this is not a trial. Your job is to assert your answers to the legal questions before the court. It will be easier for you to do this if (a) you've been assigned to the winning side in the actual case, or (b) there is a strong dissenting opinion that you can use to find the reasons why you should have won.  But remember, this is role play and so your authentic opinion is not as important as the learning process. Don't fuss about whether you are assigned to the 'right' side or whether you 'win.' Focus on determining what the legal questions are and how to answer them in your side's favour.

We are evaluating your speaking, analytic, listening, and rhetorical skills - and especially your effort. We are interested in your responsiveness to others, and energy. Imagining in advance what questions you are likely to hear and what your adversaries will say, while listening to what is being said carefully are key skills of rhetoric and - well - for most of life.

Justices should play their assigned roles too.  Your job is to ask questions of counsel relavant to the issue as the Court framed it, and based on what you hear them say. If the Court was divded in the report, think in advance how the dissenters might have challenged the arguments of the winning side. What questions would they ask? Then listen carefully and seek openings to challenge the position that counsel is taking. Don't be rude, but your role is to be assertive, interrupt as needed, and press the counsel to explain their side. If you are mild and nice and silent, you'll be out of character and you won't be helping your friends. If the questions are flying - and people are on point, everybody scores better.

In real courts, baillifs follow instructions from the judge - here we need Bailiffs to take charge of the procedure and keep us on time. It's actually a moderator's role.  The Bailiff that calls the moot court together or adjourns the moot court is called the "Bailiff Announcer." The on the keeps time is the "Bailiff Time Keeper." 

Some weeks you will be assigned the role of "The Public." You will take notes during the proceedings, and at the conclusion (after the Justices rule), you'll be asked to review what you thought was most interesting about the moot and the case for this week and tell us why is this an important set of questions for childhood and youth in Canada?


HOW WILL THE MOOTING PROCESS GO?

The Bailiffs should work together before the moot to prepare a written script, so they can remember the steps and they should distribute this script via email to all member of their mooting group by the Sunday night prior to the Monday moot. Here is a form for the Bailiffs to follow scripting their moot; it is also on OWL under the Resources tab.

The Counselors for the Appellants and Respondents should also collaborate prior to the Moot on Monday.  I have provided an Excel sheet with the role schedule and emails to allow you to do this under the Resources tab on OWL.

Step 1) Call to order [1 minute]

The Bailiff - Announcer begins the session by calling the court to order, announcing the name of the court, the date, and the names of the presiding judges (use our names).  "Hear ye hear ye, all rise. The Supreme Court of Canada convenes on this day (state the case date), the honorable Justices so and so and whosowhere presiding." 

The Bailiff - Announcer then announces the parties such as "The honourable justices will hear arguments in the matter between RESPONDANT and APPELLENT."  Then, s/he turns to the Counsel for the Appellant calling them by name, "Mr. whatever, Ms. whomever... you have 10 minutes to make your opening statement to the court." 

Step 2) Opening Statements and Questions  [40 minutes]

With 4 or 5 Counselors for each side, they will have to prepare as teams before the moot and decide how to divide the time. Every counselor must speak in the course of the moot. The Appellants go first, followed by the Respondents.

During your opening statements the Justices will listen and make questioning notes. Counselors should address the court with phrases such as "Your Honours," or "This Honorable Court." They may say, "Your Honours, the question before this courts is X..." to open the issues of the case.  

The Bailiff - Timekeeper is responsible to draw the opening statement of the Appellant to a close at ten minutes. 

The Bailiff - Announcer calls the Justices to question the Counsel for the Appellants; The Bailiff Timekeeper starts another 10 minute timer. 

All Justices are expected to pose a question to one side or the other.  Justices will address Counsel as 'Mr.' or 'Ms.' or 'Counselor.' Counsel will address the Justices as individuals with the title "Honourable Justice Last Name," or "Mister/Madam Justice." Justices may interrupt Counsel, but Counsel must stop talking when interrupted by the Justices.

The Bailiff - Announcer then turns to the Counsel for the Respondent calling them by name, "Mr. whatever, Ms. whomever... you have 10 minutes to make your opening statement to the court." 

The proceedings for the Respondent are the same as they were for the Appellant (opening statement of 10 minutes followed by 10 minutes of questioning). 

The Bailiffs draw step two to a close around 40 minutes into the moot.  The Bailiff - Announcer proclaims a 10 minute recess for the Counselors, at which time the counselors leave the room and enter the hallway in Faculty Building or common area of DL or LH to confer on their rebuttal statements.

Step 3) Recess for Counsel  [10 minutes]

During this time Counsel for each side should have a quick private exchange about the rebuttal strategy.  The instructor will bring us out of the breakout rooms.

Step 4) Rebuttal from Counsel [8 minutes]

We should come out of the break about 50 minutes into the Moot, the Bailiff Annoucer calls the Counsel for the Appellant to make a 3 minute rebuttal to the ideas from the Respondent team. The rebuttal is your opportunity to contradict the arguments that might defeat your side of the debate and to recast the issue and why it should be answered in your favour. There are no questions during the statement of rebuttal.

When time comes, the Bailiff-Timekeeper announces that time is up and that the Respondents have 3 minutes. When the time is up on the Respondents, the Bailiff-Announcer calls for a recess for the bench. 

At this point everyone (including the instructor) leaves the room so the Justices can discuss their ruling in private.

Step 5) Recess for the Bench [10 minutes]

The Justices discuss among themselves how they wish to decide the case. Though the Justices should have played a roled framed by the historic opinion during the statement and question periods, they are not bound by how the case was historically decided. You may respond to the issue posed in the case as you see fit.

This said, you must craft a statement which frames the issue before the court in terms of a legal question or questions, the answers to this question or questions, and assert a legal principle that comes from this answer. The Justices may produce as many opinions as they like, but the judges have to determine who is going to read out which opinions.   

Step 6) Pronouncement [5 minutes]

Coming out of the Judge Recess we should have about 20 minutes left of the 90 minute mooting session, the Bailiff-Announcer asks if the Justices have decision(s) to offer and who will read them.  Taking this answer the Bailiff asks the Justices to read out their decision(s) and announce who supports each. 

The Majority reads first, and (if they exist) the concurring second, and the dissent last.   

Step 7) The Public [10 minutes]

All come out of their roles, and the instructor calls upon each of member of the The Public to say a few words about the significance of this case.  


WHAT ARE MY MOOTING ASSIGNMENTS?

On OWL within the Resources Tab, you will find folders and files that contain your mooting assignments, as well as the names and email addresses of your mooting mates which will help you team-up and prepare for the weekly moot.

For your convenience, I have displayed mooting group assignments below, but your role in a particular week is only available through OWL.