Advocacy is an art. It requires trained, artistic skill. Like legal drafting, most of the basic techniques can be learnt in the classroom, but this is no substitute for raw talent. The greatest English advocates (such as Carson, Birkenhead and Marshall Hall) all reached oratory perfection not by attending formal lessons but through the gift of the spoken word. This is not to say that formal instruction is unhelpful. For the beginner, an understanding of the basic principles of advocacy is essential—avoiding pitfalls, gaining confidence and acquiring a sound technique.
Preparing your argument
The first step, of course, is to research the law thoroughly. What specific legal issue(s) are being addressed in the problem? If you are not sure, go to the various textbooks, legal databases and other source materials as a starting point. Once you are familiar with the case law and have formulated the legal issue(s), the next step is to structure your legal argument. My advice here is to keep it simple and intelligible. As part of the moot process, you will be required to produce a skeleton argument for use by the moot judge. This sets out (in paragraph form) your main submissions supported by legal authority. It is a good idea to formulate your primary submissions in this way at an early stage of your preparations for the moot hearing. After all, the skeleton argument is what the judge will have in front of him/her and what he/she expects you to expand on during your speech. It is essential, therefore, that your oral address mirrors the sequence of your written submissions.
Writing your speech
First of all, you must be completely familiar with the relevant law. This means not only knowing your own authorities, but also the cases being cited by the other side. One tip is to write out the facts and legal principle of each case separately on a card or file on your IPad/laptop, which you can then refer to should the judge wish to question you on a particular aspect in more depth. Knowing your way round the authorities will give you confidence and will reduce your nerves. So, my advice is ‘know every detail of the cases’.
Second, avoid writing out a lengthy script in full. If you do this, the chances are that you will simply read out aloud what you have written and the judge will not be impressed with your performance. It is far better to prepare a set of notes, which you can use as a prompt when making your speech. Concentrate on the vital points of your case, do not diffuse from the structure of your skeleton argument and be concise and clear in what you have to say. Prepare your speech with the judge in mind. Think about looking at the case through his/her eyes and how he/she is likely to react to your argument. As an advocate, you are expected to be a good communicator and, above all, to be persuasive. It is a good idea to write down your conclusions in bullet form and make sure you go through these with the judge at the end of your speech. If he/she is writing down your concluding thoughts, the chances are that he/she has understood your argument and will use them in formulating the judgment at the end of the moot.
Once you are clear as to what you want to say, practise your speech out aloud several times in front of your team members. You may find you have prepared too much (or too little), so time yourself to make sure you have gauged the amount of material correctly. As part of your argument, you will need to make reference to extracts from the judgments of the cases mentioned in your skeleton argument. Select these carefully so that they are not too long (a few sentences are ideal) and make sure that they actually support your submission. Again, practise reading these out aloud, placing emphasis on key words or phrases. After each passage, take time to explain what the extract means and how it strengthens your argument. It is also sometimes useful to anticipate your opponent’s argument and to refer to it in advance in your own speech. This prepares the judge for what is to come and can be very effective in spiking your enemy’s guns. One technique is to undermine your opponent’s case at an early stage by distinguishing his/her authorities on the facts.
During the moot
First of all, good manners and tidy appearance are essential. When you are addressing the judge, do not have your hands in your pockets. Speak clearly and audibly. Project your voice so that it can be heard by everyone in the courtroom. A pleasant court manner is just as important to get the moot judge on your side. You should never quarrel or be impatient with the judge. A good exchange of argument, however, may gain you respect and confidence, so long as you remain dignified and polite. Be courteous at all times, even though the judge may be struggling with your submissions or slow in picking up the more esoteric aspects of your argument.
Public speaking can be a daunting prospect, but there are obvious ways of overcoming nerves and lack of confidence. In the first place, do not think in terms of having to ‘make a speech’. Instead, look on what you are doing as simply talking to someone. Imagine yourself as speaking only to one person, the judge, to whom you have something to say. After all, that is exactly what you are doing. A recognition of this simple fact will help you to be less stilted and more natural and, therefore, more convincing. Good preparation and a thorough knowledge of the cases will also help greatly in reducing your anxieties. Again, rehearsing your speech out aloud is very useful. Avoid long sentences that are likely to trip you up or get you confused. In terms of pacing your speech, be very conscious of not speaking too fast. You want the judge to understand and remember your submissions, so slow down and pause at the right moments so the judge can absorb fully what you are saying. Avoid reading from a script. Long, convoluted sentences will simply confound the judge and prompt him to frequent interruptions.
Finally, good eye contact with the judge is also something to bear in mind. Avoid looking down into your notes for prolonged periods. You will be able to gauge the effect of your words upon the court far more accurately by actually looking at the judge and entering into a personal dialogue with him/her. In this way, you can watch his/her expression and see whether your points are being understood.
Mark Pawlowski is a barrister and professor emeritus of property law (and former moot tutor), School of Law, University of Greenwich.
