A lot is said about the skills of oral advocacy when it comes to moot court competitions, but the importance of proper research cannot be overstated. A team must conduct thorough research to ensure that their written pleadings pass the scoring criteria and form a solid base upon which their oral pleadings can be developed. Further, research is important at stages after the submission of the written pleadings – teams must research to ensure that their oralists are prepared to tackle questions, rebut opposition arguments and correct any existing shortcomings in their written pleadings. Before getting into the actual research, it’s essential that teams analyse the case and the issues at hand using methods that work best for them (this video describes some of the basic steps involved).
Once they identify the legal points which are addressed in the issue, they can start researching. It is important to remember that each person may develop their own process of research through their experiences, but some common tips are recommended by many. Some of these are:
Connecting the hypothetical case with real-life events
Most moot court problems draw inspiration from one or more real-life events. Being able to establish a connection between a real-life event and the problem makes it much easier for teams to navigate their way through relevant materials. If teams find a connection between a contemporary or past event and the hypothetical problem, they should ask themselves the following questions: (i) has this issue been raised before any court? (ii) if so, has the court ruled on the issue? (iii) if not, is this related to an emerging area of jurisprudence which has been discussed in scholarly literature?
Chances are, at least one of the issues will lead teams to the third question. Such issues may seem unfamiliar at first, but once teams delve into relevant materials, these are the issues that allow the most room to be creative and to explore arguments from many different angles.
Reading the applicable provisions of law
The moot problem will most likely lead the participants directly to the provisions of the law that are central to the problem. Usually, at the end of the moot problem, the case study lists the laws that are applicable. In most cases, participants will not need to look beyond laws mentioned. It is a good idea to do a plain reading of the relevant legal provisions a few times. If the plain reading does not lead to a solution, participants should read commentaries on the law – these are extremely helpful in that they lead the team to cases that have interpreted these provisions. Participants can also read the preparatory materials, ie the travaux préparatoires, which may help them interpret the provisions in terms of the intent of the drafters.
It is highly recommended that teams interpret legal terminology with the help of drafting and preparatory documents or case-laws, but in rare situations where a term has not been used before, they may refer to law dictionaries.
Teams may sometimes be lucky enough to immediately find cases that fit into their moot problem. However, they must carefully read the relevant case judgments. While reading the case judgment, they must identify (i) any distinguishing factors (are there any points of fact or law which distinguishes the case from the moot problem and if so, can these points be used to refute their argument?) and (ii) whether the case-law has authoritative or persuasive value (for example, is the court before which the team is appearing bound by the case being cited? If not, is it of persuasive value and why?). Participants must also be sure to check whether the case has subsequently been overruled. Although a case may lose some persuasive value if overruled, teams can still compare the reasoning of the two cases and develop arguments as to why the case they have referred is more relevant to the problem at hand.
The aforementioned points are equally important to consider when teams find a case that tips the problem in favour of any one party. Teams must examine cases that go against the party for which they are arguing and identify distinguishing points which help them rebut the opponent’s arguments. Reading the dissenting opinions is also a great way to find arguments for the other side (for example, the Arrest Warrant case rules in favor of immunity under Customary International Law but the dissenting opinion of Judge Ad Hoc Van Den Wyngaert provides some persuasive points to the contrary).
Reading secondary sources
It is compulsory to go through relevant chapters of textbooks to understand the basic concepts of law relevant to the moot court tournament. Besides this, journal articles can lead to a wealth of relevant arguments and supporting materials faster, provided that the participants can spot the articles which go right at the heart of the issue(s) or an element thereof. Although articles can be cited as supporting evidence, teams must be prepared to weigh in on credibility and persuasiveness while citing an article (or other secondary sources like textbooks or blog pieces). An article by a renowned scholar of a field of law will be more convincing to the bench than an article from an obscure source. This is equally true for books; some textbooks and their authors have gained the reputation of being authoritative sources – for example, Mahmudul Islam’s Constitutional Law of Bangladesh is a textbook widely read and referred to in constitutional cases.
Secondary sources and especially scholarly writings are particularly significant when researching an emerging area of jurisprudence. If the concept is relatively new, it is likely that existing case-laws do not adequately address them. In such cases, it is helpful to read journal articles of relevant scholars.
It is quite easy to get lost in the pile of materials teams look through to find answers to their problem. Therefore, it is important that they track their research process in collaboration with their teammates. Teams can make separate folders for each of their issues and subfolders for each party. Within that folder, they can organise their material based on their classification (primary or secondary) or relevance. Team members can also share their drafts via google docs so that they can stay updated on each other’s progress. They can highlight the parts of the judgments, books or articles that they plan on citing in their written pleadings or they can copy-paste the relevant portions into a word document. It is easier to have one document for each side of an issue but participants may choose to form shorter documents compiling each step of their argument. They must remember to also note the source from which they are compiling the text, either by inserting a footnote or simply writing down the title next to the copied text.
Balancing both sides
The beauty and the challenge of a moot court is that participants have to prepare arguments for both sides (some tournaments, like the ICC Moot Court Competition, even have three sides). Problems are framed in a way that makes it possible for teams to present sufficient arguments for each side; however, teams must be careful to not ignore any one side or develop a bias. This must be kept in mind throughout the research project.
While reading any material, teams must carefully weigh both sides of the argument and sort them accordingly in separate files.
Sketching out the line of argument
After compiling all the relevant parts from the research materials, teams must review them and sketch out a line of argument, ie where each argument is best placed within the written pleadings. Teams may choose to arrange arguments based on their relative strength and weakness but the arrangement must be coherent.
Once a line of argument is made, the team should start drafting their memorials. While drafting the memorial, teams must always adhere to the rules provided by the moot court organisers regarding the content, page and word limit, footnoting style etc.
Maintaining a timeline
Teams must also make sure that they prepare a timeline in consultation with all the team members and coach(es). The timeline should incorporate team meetings and discussions, and should reserve enough time for at least one round of review for the draft of the written pleadings.
Students who are new to moot court competitions may follow the above steps to guide themselves through the research process but they must also remember to evaluate the methods that work best for them and adjust accordingly. It is highly recommended that at the end of the tournament, teams get together to share their takeaways from working together.