55 Things You Should Know About the Philip C. Jessup International Law Moot Court Competition

Transcription

1 CIICJ Chinese Initiative on International Criminal Justice 55 Things You Should Know About the Philip C. Jessup International Law Moot Court Competition JESSUP 55 Sponsor:

2 Author Michael Y. Liu (, coordinating author) wan the National Championship (Renmin University) and Best Oralist award in 2007 and 2008 and has been coaching and judging Jessup since then. He is currently the administrator of the Chinese Initiative on International Criminal Justice ( CIICJ ). Ellen Pang ( ) participated in Jessup (Peking University) in 2009 and has been involved with coaching Jessup team ever since. She is now an editor of CIICJ. Vinca Yau ( ) participated in Jessup in 2010 and 2012 on behalf of the Chinese University of Hong Kong (CUHK). CUHK wan the Hong Kong regional round in both years and Vinca was the Best Oralist in She also co-authored the Hardy C. Dillard Best Combined Memorial at the International Rounds in She is now an editor of CIICJ. The authors would like to thank Carol Kalinoski and Qingqing Ge for their valuable comments. Advisor Joe Tan works as a Legal Officer in the Trial Chamber of the Special Tribunal for Lebanon (STL). Prior to that he worked for the International Criminal Court and practiced as a defense lawyer in Australia. He is now also an advisor to CIICJ. Roger Phillips works as a Legal Officer in the Trial Chamber of the Extraordinary Chambers in the Court of Cambodia (ECCC). Prior to that he worked for the International Criminal Tribunal for Rwanda. He is now also an advisor to CIICJ. Zach Lampell wan the Jessup World Championship in 2008 (Case Western Reserve). He is now coaching a Cambodian Jessup team in Phnom Penh.

3 Foreword When started as a Jessup oralist five years ago, my initial motivation was to take the university team to international rounds, something we had never achieved before. I later realized that Jessup is a much bigger thing than I had in mind and truly it has so much to offer. Later that year in Washington D.C., I represented China for first time in my life! Ever since, constantly I was amazed by how much Jessup can offer, to me and to any one who took a part in it. For many of us, that four to six months when preparing for Jessup is the time we feel we learnt the most essences of law and advocacy skills. We found some merit in ourselves and others that have rarely been noticed before. We got related with people that had been inspiring and encouraging us ever since. For example, most of my co-authors for the Chinese Initiative on International Criminal Justice were actually ex-jessupers. Here we put down some advice we gathered through our Jessup experience to share with everyone who is now Jessuping. Out advisors then made some further comments. The reason we are doing this is simple: It would be too late when judges give you these comments at the end of the competition. On the contrary, an oralist s full potential can be explored if practice ahead with them in mind. Regularly and continuously, Chinese teams are marching to the advanced rounds in D.C. and were only narrowly defeated by the later finalist teams. For many observers, it is a matter of time for some proud descendants of dragon to triumph another Olympic game, the Olympic of International Law. Cheers to the day a Chinese team brings the Philip C. Jessup to China! Michael Y. Liu

4 Table of Contents I. Adopting the right approach to the Moot Court Tell a reasonable story to the judges in a professional way Moot Court is not a debate or an English speech contest How much you can tell the judge matters little, but how much the judge can hear from you matters a great deal You do not have to go through everything you have prepared To misrepresent the facts in the compromis is fatal Be confident! Moot Court should be fun II. Important things to note when making an oral submission Try to speak slower Use Plain English Strive for simplicity without simplification! Examples of Plain English include: Streamline your arguments and be flexible Pause from time to time Pay attention to your tone Don t assume that all judges know the facts Refer to the compromis from time to time Oral submission can differ from your written memorial Professional appearances adds to your performance Don't leave out the details Make reference to other members of your team III. Appreciating the role of a judge Judges love you more than you'd believe Judges questions should always be presumed to be relevant If you are certain the judge is incorrect, you may politely point it out It may not be necessary for you to correct the judge Judges are vastly different Judges are even different in different rounds Be prepared for a cold bench Observe your judge when others are making their submission Procedural issues may be more appealing to judges than substantive issues. 12 IV. You will be evaluated by the answers you gave to judges questions Judges questions are mostly predictable. Prepare answers beforehand Try, as much as you can, to answer judges questions Leave some time for judges questions when preparing your oral submissions Focus and listen carefully to judges questions If you don t understand a question, ask the judge to repeat or clarify If you really cannot answer the judge s question, there is no harm to tell the judge that you don't know Move on after you finish answering the judge s question

5 38. If you have been invited to discuss something unfavourable to your case do not avoid it Send out signals inviting questions from the bench Keep your answers simple Answer a question directly It s good to have some structure in your answer Start again when you feel that you have given an unsatisfactory response Keep your composure when challenged by the questions V. You and your opponents: be nice and professional Address your opponents politely Know the other side s case You need to know your opponent team s argument Disagreeing with your opponent VI. Start with a crisp and solid introduction. Leave a good impression with a proper closure Introduce you and your partner in a way that the judge can relate Don t overlook the time arrangement Provide a roadmap in the first minute of your submission Cover your co-agent s unfinished arguments You do not have to use up all the time allocated in your submission Summarise the rest of your submissions when concluding Conclude your submissions gracefully even if you fail to finish your submissions

6 I. Adopting the right approach to the Moot Court. Moot Court is not something in our existing vocabulary. Nevertheless, it is fundamental and crucial to have a vision of the Moot Court and understand how it works so that you can imagine yourself playing a role in it. 1. Tell a reasonable story to the judges in a professional way. There are three things you should aim to have in your submission, a story reasonable and professional. You are telling a story, which means your submissions have to be coherent and not difficult for someone to understand. It has to be reasonable, that means your submissions cannot go against some common sense and it must be supported by legal authorities. You have to be professional, that means certain Moot Court ritual and formalities must be followed. All you do in a Moot Court can actually relate to one of these three. One way to ensure you are do this is to summarize your whole case into a onesentence theme. Tell the judges that theme in your introduction. Frame each of your arguments around that theme. 2. Moot Court is not a debate or an English speech contest. It is a common mistake to approach Moot Court as if it is something we are familiar with, such as a debate or an English speech contest. Some schools even prefer to choose their team members with these criteria in mind. But Moot Court does not resemble either. Moot Court is different from a debate, because every opinion or argument you present needs to be supported with legal authorities. Moot Court is also different from making a speech because you are likely to be interrupted at any time by questions from the bench. 3. How much you can tell the judge matters little, but how much the judge can hear from you matters a great deal. Many students get frustrated when they feel judges do not give them enough opportunity to develop their arguments, explain their positions and the supporting authorities in detail. Rather you need to ensure you have spent every minute impressing the judges and to satisfy their demands. To achieve this, the first thing you need is the judges are listening to you and interested in your submissions. This is a million times more important than finishing your own checklist. 4. You do not have to go through everything you have prepared. Students have a tendency to rush through their submissions because they want to cover as many arguments as they can. But the truth is that you will probably never have a chance to fully elaborate on your submissions within the

7 allocated 20 minutes. The Moot Court is simply not designed in that way. You should optimise the short amount of time available by not pedantically summarising the issues or the law contained in the written submissions. It is more important to ensure that the judges can understand and follow your arguments. Equally important you are explaining what they are interested in. Be prepared to be interrupted on several occasions by judges and questioned on points and issues that will divert you from your planned structure. Joe Tan, Legal Officer, Trial Chamber, STL: To persuade judges in your oral argument, you need to highlight the most interesting aspects of your arguments and develop them rather than merely repeating your written submissions in summarised form. Be flexible and prepared to amend your planned submissions to omit sections or certain arguments if necessary and time is short. Think ahead about which of your weaker arguments could afford to be left out if you find yourself short on time. 5. Avoid teaching judges the law. Some of the most common mistakes committed by advocates: becoming a teacher in international law, debating with the judge or condemning the opposition. It is fairly common for advocates to start lecturing the judges on international law rather than developing their oral arguments. The trick is in correctly understanding your relationship with the judge: you are there to assist them not tell them what to do. So when you are trying to inform the judges of something they seem to not know about, make it sound as if, you are helping them recall some long lost memory, stuff they once knew but just forgotten over time. 6. There is no one absolutely correct answer to the legal issues in the compromis. As Chinese students, we tend to be preoccupied with the question of is this the right answer? As you will realise from reading all the teachings of those distinguished publicists, you will rarely find any direct or correct answer to legal issues in international law. You are looking for the materials and sources to support your argument, you are looking for a most articulated answer to the question, and the answer does not always have be absolutely correct. 7. To misrepresent the facts in the compromis is fatal. 2

8 Judges value intellectual integrity more than you would think. Mistakenly interpreting a legal principle might be forgivable, but if you misstate a fact in the compromis, your whole integrity would be questioned. Joe Tan, Legal Officer, Trial Chamber, STL: For judges, it is a fundamental premise that a lawyer before them, who is an officer of the Court, is telling the truth and his/her words can be relied upon. Therefore, it is advisable to stick to the original wording in the moot problem. If you have a strong argument, you do not need to exaggerate the facts. If you have a weak argument, exaggerating facts simply makes things worse. Sometime when facing a tough professional practising judge, this also means you need to be very careful of every word you choose. For them, any slightest deviation from what is stated in the compromis is unacceptable. 8. Be confident! Most Chinese teams lacked a lot of confidence before they went into their first moot competition. Questions like what if judge ask me this, what if I cannot understand their question etc. are frustrating and drives every moot oralist or even their coach crazy! But in the end, all turns out to be fine. The truth is you are probably already better prepared than you thought! Competition itself is a way to gain confidence. Roger Phillips, Legal Officer, Trial Chamber, ECCC: A prominent international defence counsel is known for saying: Never prepared, Always ready. He was suggesting that intervening events do not always permit scrupulous daily preparation in an international criminal trial. However, you should be both prepared and ready- prepared in the sense that you have read and memorized the essential elements of the compromis and your argument; ready in that you are mentally calm and confident based upon your practice. 3

9 9. Moot Court should be fun. We join a Moot Court for different reasons. To get a trophy for yourself and the university, to learn international law, to practice advocacy skills, or for a better career or overseas study opportunity, so on so forth. All these goals are legitimate and with merit. But don't forget the process itself can also be very enjoyable. It must be! You may well find a part of yourself that you have not discovered before and is unknown to others. You will meet and get to know friends possibly will inspire and encourage you ever since. (Do take part in the social events and make new friends!) The most demanding part preparation has already passed. In the Moot Court, you should relax and enjoy. 4

10 II. Important things to note when making an oral submission. We speak a different language in the Moot Court. Many of us know; a few can speak. 10. Try to speak slower. When one is under pressure, there is a tendency to speak faster than usual. Try to intentionally slow down a bit. Speak as if you have all the time in the world. Have the introduction written down before you and deliver it slowly. After that, your submission will proceed fairly smoothly. It is not uncommon for advocates to be unable to finish their submissions - as long as you are three-quarters of the way through it, it is usually considered acceptable (even this rule is not absolute). Remember that your task is to assist the judge and the focus is in answering their questions. If in the process of doing so, you are unable to finish all your submissions, they will understand. It should all be in the written submissions in any event. Zach Lampell, Jessup World Championship 2008: Everyone speaks much faster than they realize. Slow down. Pause between sentences. This gives the judges time to digest what you said and time to ask you questions. 11. Use Plain English. Strive for simplicity without simplification! Examples of Plain English include: o Short sentences help to keep your submission simple and concise. o Avoid complex sentence structures and impressive sounding words that are simply too long. o Refrain from using jargon of any sort and if the compromis obliges you to use them, explain them in simple terms. o As for the manner of speech, be yourself with a few exceptions: refrain from being too colloquial or overly familiar and saying, ok, yeah, yup, guys, gals. Some judges dislike the use of the word I. Use we instead. o Latin maxims could be helpful as a shorthanded way to refer to a legal principle, but they should be used sparingly. If there is an English version of the maxim, then consider using that instead. Avoid 5

11 alienating the judges, particularly judges from a non-western legal tradition, with latin and European languages. 12. Streamline your arguments and be flexible. You will often find yourself tasked with explaining complex legal concepts. It is easy to forget how complicated your arguments can be, because students will be extremely familiar with their own arguments by the time of the competition. But bear in mind that judges are not. Hence, it is necessary to keep things simple. One way to test your argument is to ask a friend to listen to your oral submissions and see if he or she can follow without any background. Remember to stay flexible as you might be required to shift the order of your arguments during the oral submissions. This might be a result of a question that requires you to give an answer that is found in your subsequent submissions. Or the judge may simply be more interested in another issue. The solution is to keep your submissions independent of one another as much as possible. If they are connected, then mark down how they are connected and use it as a method to guide the bench back to your submissions. 13. Pause from time to time. It is advisable to pause after each point, or else judges might not realize that you are starting a new argument. It also makes it easier for judges to follow your arguments or ask you a question before you move on. 14. Pay attention to your tone. You should avoid being dramatic. If the submission concerns the killing of people, do not smile or appear too upbeat. By the same token, if your client s rights have been violated, you should not sound too passive. Nevertheless, this is not to say you should be acting indifferently when you making your submissions. Use emphasis and other body language like you really believe in your submission is also important. Speak with various tones can also help continuously attract judges attention. 15. Don t assume that all judges know the facts. You have lived with the compromis for months, but the judges might not start reading the compromis and your memorial until a few day or a few hours before the oral round (unless he's a coach of another team or have judged other national rounds - that's another reason why you have to be extremely familiar with the facts). This is particularly important in the preliminary rounds. Judges will be more familiar with the facts in the more advanced rounds of the competition. 6

12 16. Refer to the compromis from time to time. Do this especially when you are referring to a piece of fact that is critical to your argument which the judges have ignored or misunderstood. If you know the paragraphs of the compromis to refer the judges to, it shows the judges that you have come prepared. Zach Lampell, Jessup World Championship 2008: My team was not allowed to have any notes. From our first practice, notes were banned. While that process will not be successful for everyone, memorize all of relevant paragraphs of the Compromis. If you do not have to refer to your notes when referencing a paragraph of the Compromis, the Judges will be impressed. 17. Oral submission can differ from your written memorial. In the oral arguments, you can make submissions that are new or differ from your memorials. Be aware of the possibility that a judge may get confused by your new argument. In that situation you can explain to the judge this is something new. 18. Professional appearances adds to your performance. This typically means a suit for males. Female oralists can of course choose to wear formal pants, skirts or dresses with a dark coloured jacket. This is not a fashion show or a ball, so please keep distracting jewellery to a minimum. Stand upright when doing the presentation. No matter how passionate you are when making submissions, do not leave your podium. Zach Lampell, Jessup World Championship 2008: Oral submission is about presence. From the moment the Judges walk into the room, until they reach their decision, you are on-stage. Oralists who understand this and work on their presence succeed. 19. Don't leave out the details. Evil lies in details. Judges might be interested in the details of your submission, especially the supporting authorities. You don't want to get caught for being unaware of these details. For example, with regard to case-law authorities, have little fact sheets handy with the year, court, parties and judges 7

13 involved including any separate and dissenting opinions. Some judges want to make sure that you have thoroughly researched and understood your authorities. 20. Make reference to other members of your team. Refer to your co-agent s submissions whenever possible, particularly, if you are the second oralist, to show that your team has a cogent case that flows methodically from one oralist to the other. 8

14 III. Appreciating the role of a judge. Imagine how appalling it will be if you are submitting a case facing three poker faces. Judges interventions make the Moot Court much more fun and give you a chance to establish your position and prove yourself. 21. Judges love you more than you'd believe. Every year, judges travel across the continent to China or Washington D.C. to act as a judge in the Moot Court at their own cost. It is not the fun of torturing students that motivates them but their affection for the Moot Court and the students who are really in the center stage of the Moot Court. Making oralists suffer with their questions may seem like what they are doing. But helping the oralists explore legal issues and explain themselves through engaging with judicial questions is actually what they are doing. They love nothing more than to see students persevere and finally prevail. Zach Lampell, Jessup World Championship 2008: The harder the questions, the better you are doing. Remember that when the questions get tough. 22. Judges decide. You are there to assist them. Judges are the ones to decide who wins the case in the real world or how good you are in the Moot Court. The relationship between you and the judge is not one of equality but one of subservience or "deference and respect" (Rules of Professional Responsibility in many jurisdictions would actually require this). Hence, etiquette would have to be observed. You are there to assist the court rather than debate with them. If the judges adamantly do not buy your argument after several attempts, there is no need to try and coax them into it any further. Just move on to your alternative submissions. Or if the judges want to hear your subsequent arguments first and flip your entire order of presentation around, just follow their approach. It is their concerns you are trying to address here not yours. If they ask you questions before you even begin your submissions, answer their questions first with the matter from your submissions. May it (whatever it is) please the court. 23. Judges questions should always be presumed to be relevant. 9

15 A judge is sitting there to decide the case. Therefore, whatever he or she is interested in should always be relevant. Joe Tan, Legal Officer, Trial Chamber, STL: Very often judges may have their own views on issues which may differ and you will need to engage with them persuade them to accept your views and arguments. It may well be that these lines of questioning will eat further into your allocated time but remember that advocacy is about the art of persuasion not merely reading from a planned speech. 24. If you are certain the judge is incorrect, you may politely point it out. Likely, some judges in the Moot Court do not know as much as you do regarding the facts of the compromis. They may not be entirely familiar with the legal issues involved. You need to expect this and gently correct the judges. If the judges are mistaken, you can politely alert them to this: Your Honours, I respectfully disagree with and explain yourself. 25. It may not be necessary for you to correct the judge. You ought to remember that it is the judges Court and if they do not agree with you after you have attempted to convince them otherwise, move on. Also, if you feel the judge has misunderstood a fact or law that is irrelevant to your submission, don t waste valuable time attempting to correct him/her. 26. Judges are vastly different. Judges have different nationalities, educational backgrounds, work experience and even levels of English proficiency. Common law tradition judges in general, tend to ask more questions compared to civil law tradition judges. But civil law tradition judges can be more interventionist. You should be able to discern the style of a judge shortly after the first oralist starts his/her presentation. In general, if a judge asks a lot of questions, he or she probably prefers you to answer questions directly with a short explanation. On the contrary, if a judge rarely asks questions but his or her questions are relatively longer than others, you probably want to elaborate more in your answer to this question. To be able to adapt and interact with different judges in different ways is an essential skill for all oralists. 10

16 27. Judges are even different in different rounds. In general, judges in the initial rounds, tend not to be as familiar with the facts and legal issues but they get more familiar with them in the more advanced rounds. (There are some judges who have done other national rounds before they judge you this rule does not apply to them.) You should act accordingly. In the beginning a few rounds, more elaboration of the facts in the compromis may be justified when explaining the issues and rules concerned. Some would even try and gauge their familiarity with the facts. You could do this by asking them: Would it assist you if I provide a brief summary? or something to that effect. 28. Be prepared for a cold bench. A cold bench is one that asks few questions during your oral submission. For some quiet judges, it is just there personal style, for others it is the newness of the experience. No matter which, it can be hard for the oralist to interact with, precisely because they don't ask many questions and it will be hard to discern their concerns. When faced with a cold bench, it is advisable to: o Plan a presentation of at least 15 minutes totally of your own. o Be clear about the structure of your submissions and the facts in the compromis. The cold bench is sometimes cold because they are unfamiliar with the case. o Add more references to legal authorities in your presentation, including the name of the case, where it is from or even paragraph references, if you are trying to emphasise a legal issue. o Use more pauses and slow down your presentation a bit as well, so as to adapt to their rhythm and invite questions from the bench. Of course, don t make this too obvious, otherwise it will become a bit embarrassing for both the bench and the bar table. Zach Lampell, Jessup World Championship 2008: Don t be afraid to engage the Judges. If you haven t received a question in a few minutes do 3 things: 1) pause, 2) make eye contact, and 3) say something like, Perhaps your excellencies are asking yourselves 29. Observe your judge when others are making their submission. 11

17 Unless you are the first oralist, you will have a chance to observe your judge. You should be able to tell from his or her style, and the questions asked, what particularly issues a judge is interested in. 30. Procedural issues may be more appealing to judges than substantive issues. Judges may find procedural issues like standing and exhaustion of local remedies more interesting than you d think. It is the tradition for common law judges (which represents most judges) to attach greater importance to procedural issues. Also, the substantive issues in Jessup change every year, but every two or three years the same procedural issue recurs in the Moot Court compromis. Experienced judges are very familiar with these procedural issues and would love to discuss them in great detail. 12

18 IV. You will be evaluated by the answers you gave to judges questions. Questions are your best friend and the quality of your answers matters! When the judges invite everyone to leave the room and start to deliberate, they will go through how you have answered their questions and score you accordingly. Because of this, you want to be questioned. The more questions there are, the greater your opportunities to prove yourself and your submissions. Welcome questions! 31. Judges questions are mostly predictable. Prepare answers beforehand. One common arrangement is that when the Applicant team is arguing the pleadings, the Respondent team can write down their questions. The Applicant team will review those questions and improve their answers. The goal is simply to prepare ahead as much as you can. 32. Try, as much as you can, to answer judges questions. As implied by the often used phrase, may it please the court, your role in a court of law is to please the judges. That means you should always try to address the judge s concern as much as you can. Judges put these concerns to you through their questions and it is your job to answer these questions with your best effort. Of course, to answer as much as you can is not to say you need to spell out all you know but a matter of sincere and candid effort. For example, when a judge ask you: Agent, do you know what is the weight of media reports in front of this Court? If you don't know ICJ s practice in this regard but happen to have a case law from another international court on point, you may want to make submissions on this authority and explain why the same should apply to ICJ. In that way, even if your answer is not as most persuasive, judges will at least appreciate your efforts and sincerity. 33. Leave some time for judges questions when preparing your oral submissions. If you are using 21 minutes for your submission, only plan to speak for 15 minutes. The rest should be reserved for judges questions. You should be prepared to cut short or lengthen your arguments whenever necessary. 34. Focus and listen carefully to judges questions. This is particular important when you are nervous. Remember to focus and concentrate on the question. Nothing is more damaging than rambling and unresponsive answers. Apart from that, it is a waste of valuable time. 35. If you don t understand a question, ask the judge to repeat or clarify. 13

19 You should not be embarrassed if you didn't get the judge s question. Joe Tan, Legal Officer, Trial Chamber, STL: Chances are, you will not be the only one. Ask for the Judge to repeat or clarify the question. He or she will only be too happy. You could also rephrase judge s question, e.g. Your Excellencies, if I understand the question correctly, you are asking...? 36. If you really cannot answer the judge s question, there is no harm to tell the judge that you don't know. Agents, no matter how good they are, are human. They are not expected to have an answer for every question. However, you can admit this in a gracious way. For example, I cannot assist the bench in this regard or Your Excellencies, this is my best endeavour. Nevertheless, you should minimise the occasions where you have to concede this. 37. Move on after you finish answering the judge s question. You don t need to wait or ask the judge s permission to move on after answering a question. The simplest way of moving on is to say coming back to my submission or I will now turn to. If you want to sound more natural, you may say this leads me to my next submission... or simply at this point it is necessary to discuss If you have been invited to discuss something unfavourable to your case do not avoid it. Even you know the issue in point is not on your side, you cannot simply say you don t know. In 2012, an important decision of ICJ Germany v. Italy came out in February (unexpected early) just shortly before the Jessup. One pleading in the Compromis got most of its inspiration from this case and one side would almost certain lose the case following this decision. Judges understand this but still would like to see if the counsel has prepared. If you are the Respondent and the Applicant raises a major case or argument, you must respond to it. Joe Tan, Legal Officer, Trial Chamber, STL: As an officer of the court you must be frank and candid about the facts and the law even if they are adverse to your case. While you may not have a positive obligation to raise them in your submissions, once you are queried on it by the judge, you must address them. At times, this can actually be used to your advantage. For example, it may provide you with an opportunity to persuade the judge that a particular authority is distinguishable. In an event, you cannot make a misrepresentation or mislead the court. 14

20 Roger Phillips, Legal Officer, Trial Chamber, ECCC: Don t be afraid to admit where your argument is not strong. Of course, emphasis should always be placed on the winning aspects of your argument. But international judges do not appreciate where counsel appears dishonest or unreasonable by failing to acknowledge an inescapable fact. Acknowledge the fact, refocus on your strengths and explain why that means you should win. 39. Send out signals inviting questions from the bench. You want to let the judges feel you are waiting for them to ask you questions whenever they feel necessary. Engaging judges can be through your body language as well. Lean forward when they are asking questions. Smile and look at them if you see them shuffling in their seats. Pause from time to time and see if they want to ask a question. 40. Keep your answers simple. The best answers are usually very short. Unless the question is particularly difficult, a few sentences will do. There are a few disadvantages of long answers: (1) your answer will be less precise; (2) you are wasting precious time; (3) the judge may get bored; (4) and you may forget what the question was in the end! 41. Answer a question directly. For some judges, it will just kill them if you intentionally play Taiji with them. Even with judges used to more diplomatic ways, a direct answer is always appreciated by them. This means if a question is a yes or no question, start answering by saying yes or no and give the rest of your answer. Yes, Your Excellency this is correct. No, Your Excellency that is not what we are submitting This may be more difficult than it sounds in some cases, because you might (correctly) believe the judges are trapping you. But there are ways you can get around this and you should still try to answer the question directly e.g. No, Your Excellency. With all due respect I beg to differ.. Indeed your excellency. However, there are exceptions to this rule. 42. It s good to have some structure in your answer. You should always answer directly and then explain the reasons. If you have more than one response, begin by saying, Your Excellency, there are 2 15

21 responses to that question, firstly, secondly If you are trying to distinguish a case raised by the judges, you can try to start with: Yes, we acknowledge that case. But the case submitted by the Applicant is not the leading authority in this regard. (reasons) This will help to keep judges engaged in your entire response. 43. Start again when you feel that you have given an unsatisfactory response. If it ever happens that you rambled off point and gave an unsatisfactory answer that confused yourself and the bench, pause, and respectfully ask the judges if you could answer that question again. Then, proceed with a more organized and reasoned response. This would be better than leaving everyone confused. The bench would appreciate your efforts in making the clarification. Of course, ideally, you shouldn t have to do this too often. 44. Keep your composure when challenged by the questions. If a judge asks you a question that stuns you: don t look stunned. It is perfectly acceptable to say, Your Excellencies, may I have a moment, please. Most of them would want to hear a proper answer, and would thus, be happy to offer you a moment. What some would do is to have a sip of water. Everyone knows you are buying time but they have all been in your position before, so they would understand. The judges are not looking for THE answer- but a reasonable one that you are not embarrassed to make. So just make an honest and reasonable attempt that aims to put forward the thrust of your case or at least rehash your arguments, if you can t think of a direct response. Zach Lampell, Jessup World Championship team 2008: Keep a poker face. There will be times that you do not know an answer to a question. That is ok. But do not act surprised or show anguish in your face. Keep your face and attitude the same. Smile. 16

22 V. You and your opponents: be nice and professional. In a Moot Court, you and your opponents are not directly addressing one another. Most interactions are between you and the judges. But this is not to say your opponents are invisible. Rather, you have to expose the weakness of your opponents submission. Good advocacy is directed at the opponents arguments without having to resort to personal attacks. 45. Address your opponents politely. It serves no purpose in being hostile towards your opponents. As a professional lawyer, you are required to address them politely. Opponents can be referred to as opposing counsel, my learned friend (as in English courts), Agents for the Applicant/Respondent. 46. Know the other side s case. Regardless of whether you are the Applicant or Respondent, you need to know the other side s argument on the issues involved in the compromis and prepare your response accordingly. There are times a judge directly asks the oralist to respond to a particular argument by the opposing side. If you are in that situation, your entire oral submission might be transformed into a mega rebuttal. 47. You need to know your opponent team s argument. You will be served with opponent s memorials before you walk into the courtroom. You (or your coach) should spend some time on this memorial to discern your opponent s arguments (presuming they are sticking to their memorial) on issues arising from the compromis. For Applicants, you might want to try to proactively attack the Respondent s argument. You can do it in subtle and implicit fashion at the same time when establishing your own case. In some situation, you can explicitly tell the judge, we anticipate from the Respondent s memorial that they will submit and you are going to address this argument. Of course, the Respondent will have a chance to remedy this damage, but it is important to establish the presumption for the judge. For Respondents, part of your submission is always going to be rebutting the Applicant s arguments on the relevant issues while establishing your own. Rebuttal is particularly important if you have observed the judges being persuaded positively by the Applicant (even the judges will never expressly indicate this). 48. Disagreeing with your opponent. 17

23 It may not be very professional to directly designate your opponents submission as wrong or tell the judges that your opponents are wrong. Judges should have the call of that finding. You, as a counsel to assist them, therefore should avoid usurping their authority. A safer approach might be summarize the wrong argument and tell the judge but it is our respectful submission that or the opponents have misconceived/misconstrued something. However, as previously mentioned, judges are vastly different from one another. The above rule is relative and depends on how tough a stance you are taking. Some judges find it offensive that advocates use the term wrong whilst others feel that is just an act of confidence that the advocates have to live up to. You may still use the phrase when you are comfortable with it. But always remember to show the utmost courtesy to your opponents. No matter what, if you make a serious allegation that someone is just wrong, you had better be able to back up your arguments with sufficient evidence to support it. 18

24 VI. Start with a crisp and solid introduction. Leave a good impression with a proper closure. You only have around 20 minutes to impress the judges. A good first and last impression can help to consolidate a decent overall impression. 49. Introduce you and your partner in a way that the judge can relate. Be aware that our name (especially the given name) can be confusing to the judges. You should work out a solution. For example, I am agent LIU representing the Applicant in this case, Alfurna, together with my co-agent, Ms. Zhang. Do it with a natural emphasis when pronouncing your names. Needless to say, it is more important for judges to remember your argument than your name. So please keep this short and sweet. 50. Don t overlook the time arrangement. It is the duty of the judge to ensure a proper time-keeping in the courtroom and score your time-arrangement skills. You need to assist the judge to do this job. The first counsel of each team need to tell the judges how many minutes you and your teammate want to spend. For example, I will spend 19 minutes on the first and second pleadings and my co-agent will spend another 20 minutes on the third and fourth pleadings. We reserve 4 minutes for our rebuttal. 51. Provide a roadmap in the first minute of your submission. After you have introduced yourself and your co-agent, you would then inform the Court as to your division of labour. At this juncture, you can lay out your roadmap. Do this slowly as most judges would be scribbling your proposed structure. You don't have to do the same for your co-agent as he/she would do this for themselves at the beginning of their submission. 52. Cover your co-agent s unfinished arguments. If you are the second co-agent, you only need introduce yourself and briefly state what submissions you are going to cover. But in some circumstances you have to pick up where your co-counsel left off. This is not strictly necessary except if the judges explicitly require you to do this. But it could be very impressive if you can show that you are not only familiar with your own arguments, but also your co-agent s. It may also help the natural flow of the pleadings. 53. You do not have to use up all the time allocated in your submission. 19

25 If at then end, you have not spent all your time, you can ask the judge, Your Excellency, are there any more questions from the Bench? When you are using If I cannot assist the court further, I will rest with those points, or Unless I may be of further assistance to this Court, this concludes my submissions, you are making your final attempt to invite any questions from the Bench. There is little more you can do beyond that. 54. Summarise the rest of your submissions when concluding. Most of the time you won t be able to finish your submissions. Judges may remind you to conclude your arguments in a minute or two. With that, you should put forward a one-minute summary of your rest submissions. It is wise to prepare a short conclusion. 55. Conclude your submissions gracefully even if you fail to finish your submissions. As this is a rule rather than exception, there is nothing embarrassing if you fail to finish your submissions. Keep yourself cool and gracefully conclude your submissions. For example, If I cannot assist the court further, I will rest with those points, or Unless I may be of further assistance to this Court, this concludes my submissions, or May I refer Your Excellencies to our memorial for the balance of our submissions. Roger Phillips, Legal Officer, Trial Chamber, ECCC: Remain confident through to the finish. Even if some of your responses could have been better, thank the judges at the conclusion of your argument and walk away with your head held high. When your time is up but the judge has just asked a question that you are obliged to answer, politely say: Your Excellencies, I see that my time is up, may I have a minute to complete my submission?. Don't take much time to conclude what the oralist has to say. That is not the time for a lengthy narrative. Joe Tan, Legal Officer, Trial Chamber, STL: If you find yourself over time, do not ignore this. Mention this to the judges (eg. I see that my time has expired, I am in your hands your Honour as to whether you wish to conclude at this point ). The judges will then be prompted to provide further direction as to how they wish to manage the time available. In extreme cases, you may request permission to wrap up. It is acceptable to go over time to close but this should be very formulaic and last only a few seconds. 20

26 CIICJ Chinese Initiative on International Criminal Justice Founded by a group of young Chinese professionals and academics in the field of international law, CIICJ is mandated to promote a better understanding of international criminal justice, its value and challenges in the Chinese language context and let the voices from China be heard in the world. For any questions and suggestions concerning CIICJ, please contact admin@ciicj.org.

27 Fangda Partners is one of the first PRC law firms established under China s contemporary legal system. The two characters of the firm s Chinese name, fang and da, meaning integrity and open-mindedness, are a shortform mission statement of our practice. Shanghai Beijing 圳 Shenzhen Hong Kong