APPENDIX B: ASSESSMENT TASK 2 – COURT APPLICATION (30% OF FINAL MARK)
General information
This Assessment task is worth 30 marks of your final mark.
The task is either making (Applicant) or opposing (Respondent) an application before the Supreme Court in your respective state based on a fact scenario, which will be uploaded on to the unit web page at the start of semester. Whilst the matter would ordinarily commence in the County/District Court, for the sake of consistency with our studies, you are to assume it will be heard in the Supreme Court. You will appear in the simulated court to make or resist the application on a designated day and time set in the Court Fixture and only those students appearing before the court will be present. In other words, there will be no audience for the applications. You are required to apply the law (statutory provisions and case law) to your submissions.
You must be prepared to answer questions form the presiding judicial officer (your tutor). You may work in pairs to research and strategise over the arguments, but your oral submissions must be prepared and delivered individually. You should also carry out and demonstrate legal research and apply your research to your submissions. You will also be expected to show competence in basic advocacy, in other words, effective communication (see the marking rubric below).
The Court Fact Pattern and the Court Fixture will be placed on the unit web page under the “Modules” and “Weeks 6 and 7” tabs. The Court Fixture will list: who you are acting for; which issue you are to address; who your partner is; the opposing students; and, the date and time for your appearance before the simulated court.
Please note that the bench may ask you about the facts to ascertain the value of any common law precedent so with any case you cite, you should be able to state briefly the relevant facts of the case, the hierarchy of the court, the number of judges (and the composition of any majority or minority) and the outcome of the case and the reasoning behind that outcome.
PLEASE NOTE: any student unable to attend the court on the specified day and time will still be required to present their oral argument to their tutor at a date and time to be determined and at the convenience of your tutor. In this sense every student will be assessed equally in this unit. You will need evidence of your reasons not to be able to appear on the designated day and time (please note, medical certificates or other evidence will be checked for accuracy and students will be subject to University disciplinary proceedings if their documentation is false or misleading).
Court submissions
• There is no written submission for this assessment it is an oral submission only.
• Court will be conducted during the times and days of your normal tutorial – see the Court Fixture available on the unit web page for your exact day and time (under the “Modules” and “Weeks 6 and 7” tabs).
• There is no audience in the court room (your usual tutorial room) for the oral presentation of your submissions; just yourselves (4 students) and your tutor – so no need to be nervous – this is a conversation about the issues.
• Your tutor will be marking you as you make your submissions so do not be put off by your tutor writing something based on something you just said – it may be a good comment about your submission.
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• Each court (set of four students) will be allocated up to 30 minutes for oral submissions including questions from the bench.
• You should divide your time so that each of you presents for no more than 5 minutes each and allow the bench to ask questions during that time.
• You should be prepared for the bench to ask the other side to respond to a submission made by one side. In this respect the hearing may turn into a three-way conversation between the bench, the applicant and respondent on any given issue.
• You should be prepared to be interrupted by the bench at any point in time with a question.
• Given the tight time restrictions, you should expect not to get through your submissions therefore present your most persuasive point early on in your submissions and once again do not prepare more than 5 minutes of submissions.
• Because of time constraints we will not observe the formalities of court rather keep it casual. There is no need to “dress up” for the oral submissions and you do not need to provide case citations unless asked to do so.
Important Note: Court -v- Moot
This assessment is a court hearing of an application simulated in the Supreme Court of your respective state. It is not quite the same as a law school moot where students present their argument on behalf of their client and answer questions from the bench without interacting with the other side. This hearing is more like an actual application before a court in that the applicant may be interrupted by the bench after their first submission and the bench may ask the respondent to reply to the applicant’s submission and vice versa. From there, the parties engage in a conversation with the bench going back and forth and being guided by what the bench considers are the contentious issues before the Court.
So, respondents and applicants, please be aware that the hearing will be a conversation that resembles a tennis match with the argument going back and forth across the bench as counsel make their arguments based on the submissions before the Court. Listen carefully and follow the argument and make sure you address the issue being discussed when called upon to do so.
Tips for the Court Hearing
Announcing your appearance and the flow of the matter
Don’t forget, to announce your appearance when your matter is called on for hearing, the conversation will go something like this:
Judge: “The next matter in my calendar is Richardson v Smith. Are there any appearances please?”
Counsel for the Applicant (1st issue): “Your Honour, if it please the Court, my name is Ms/Mr/Mx (insert your surname and spell it) and I conditionally appear for the applicant, Mr Larry Smith along with my learned friend Ms/Mr/Mx (surname of the student presenting the 2nd issue for the applicant and spell it).”
Counsel for the Respondent (1st issue): “Your Honour, if it please the Court my name is Ms/Mr/Mx (insert your surname and spell it) and I appear for the respondent, Ms Rachel Richardson along with my learned friend Ms/Mr/Mx (surname of the student presenting the 2nd issue for the respondent and spell it).”
The Judge will then ask counsel for the applicant (1st issue) to commence making his/her/their submission. The bench will interrupt all the advocates to ask questions and will likely invite the opposing side to comment on any issue raised by any advocate. This back-and-forth style of
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advocacy is common in the hearing of applications prior to and during trial, such as this. Listen to the questions asked by the judge and answer the question asked without any extraneous or irrelevant material. It doesn’t matter that the question asked by the bench may be addressed later in your submission – answer the question asked of you as it is asked.
Don’t be afraid of questions – through questions, the judge is leading you to the most controversial and disputed points of law within each issue and it is these areas of discussion that ultimately lead to the Court’s decision. Questions assist an advocate to be able to persuade the judge on the most controversial points of fact and law in any application. In other words, you should welcome questions from the bench as they guide you in your submissions!
Use of authorities
You do not need vast numbers of cases to make persuasive submissions in this matter. The way to do well in this assessment is to use few authorities but use them well. In other words, cite the relevant legislation and/or sub-ordinate legislation and, where appropriate, a case that will assist the Court to interpret how the statute should be applied to the facts before the court. State a proposition of law and its authority (statute and/or case law), then state the relevant facts of our case and draw a logical conclusion that supports your side of the application (this approach is called “deductive reasoning” and works well in court). It is the similarity of the precedent facts (case law) and the proposition of law flowing from the precedent that, used together with the case facts, will make for a persuasive argument (submissions) that will persuade the Court to find in your client’s favour.
The worst thing you can do is overburden yourself and the Court with numerous authorities some of which may not be on-point. You also need to consider that you have very limited time and hence, do not have the luxury of too many authorities; prepare for no more than 5 minutes of submissions as you will need to answer questions from the bench.
Drafting your submissions
Try using deductive reasoning to craft your submissions. Deductive reasoning draws conclusions from the application of rules. It establishes a link between the legal rule and the facts to arrive at a particular conclusion. Deductive reasoning underpins all legal arguments. The basic building blocks of deductive legal arguments for this assessment are:
Major premise: All law students must study the compulsory law unit LAWS201.
Minor premise: Sally is studying LAWS201.
Conclusion: Therefore, Sally is a law student.
For this court application (example topic only – not related to the real fact pattern):
Major premise: A valid contract requires consideration (using statute and/or case authority).
Minor premise: The plaintiff paid a deposit on the signing of the contract.
Conclusion: Therefore, the Court should find that valid consideration exists.
Advocacy tips
Notwithstanding that this simulated court hearing is not a moot in the traditional sense, some general tips on preparing and presenting oral arguments in moots can still be useful and many can be found on YouTube. You should source some of those videos prior to your appearance to get a feel for what it will be like on the day. Good court advocacy is the same whether it be a moot or a simulated court hearing as in our assessment task.
The following extract from “Survive Law Blog”, September 24, 2013 by Ben at
https://www.survivelaw.com/single-post/1520-tips-for-new-mooters
may be of assistance to those that haven’t participated in an assessment like this before. So, if you are new to courts
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and aren’t quite sure what to do, here are some things Ben has learned from participating in his first few moots …
1. Read the Cases In their entirety. Yes, it sucks and takes a stupidly long time, but when a Judge pulls you up on why the appellant’s authority should be distinguished from the case at bar, you want to be able to recite the intricate details of the facts and note how they are dissimilar, or if they asked you why you used a particularly eloquent quote that was said in obiter and not the ratio, you want to be able to point to how the High Court got cranky about the intermediate appellate courts disregarding ‘seriously considered dicta’ of the HCA in Farah Constructions.
2. Do not read off your notes Know the material. Know the argument that you want to make and how you would like to make it. The thing with mooting is that the Judge can interject and ask you questions whenever they please, and should their questions direct you away from the lovely, linear and logical argument you had on paper, you need to be able to adapt and still know the main points you want to make.
Plus, it’s a lot less compelling looking down at your notes while you are telling the Judge why the appellant’s case is rubbish, as opposed to speaking naturally and looking the Judge directly in the eyes while you make your point.
3. Practice before your moot Mooting is like spoken chess. While there is a fair bit of room to move and several variables that are not completely predictable, you get a general idea as to the line your opponent or the judge may take. I mean, you can pretty much assume your opponent is going to argue the opposite of everything you say, and you can pretty much assume the judge is going to poke at all the weak areas of your argument. Therefore, it is easy to make some general preparations to help you along, especially when you have your opponent’s submissions!
Also, take turns playing judge with your partner when practising, have one person practice their submissions while the other interjects with questions whenever they can think of any. It goes a long way in preparing for the judges’ questions!
4. List the things you want to talk about And cross them off as you do. I got told this by the judge after I completely messed up my first moot and got all confused by the judge’s line of questioning. Knowing the points that you want to make and crossing them off as you go along gives you the flexibility to address judges questions, while also helping you to keep track of the general direction you want to go in.
5. Relax and have fun Take it seriously enough so that you feel like you gave it a genuinely good crack and don’t let your team mate down, but don’t be too upset if you don’t get the results you want. At the end of the day, mooting is seriously fun. So, enjoy it.
Sometimes things won’t happen the way you want it to; you might mess up something that you have practiced a thousand times and just know that you could have nailed it, you might get a judge that rocks up absolutely clueless and barely asks you a question. These things happen – getting good results are always nice but the skills you learn from mooting are the most valuable.
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CRITERIA REFERENCED ASSESSMENT RUBRIC FOR ASSESSMENT TASK 2 – COURT APPLICATION (30% OF FINAL MARK)
Criteria
Standards
FAIL
(<49%)
PASS
(50%-64%)
CREDIT
(65%-74%)
DISTINCTION
(75%-84%)
HIGH DISTINCTION
(85%-100%)
Knowledge
Knowledge and understanding of civil procedure.
Ability to think critically and evidence problem solving skills.
Synthesises a persuasive argument using appropriate authorities linked to the questions or legal problems.
(25 marks)
• Demonstrates an inadequate understanding of civil procedure.
• Demonstrates poor critical thinking.
• Demonstrates poor synthesis and fails to make a persuasive argument.
• Demonstrates adequate but limited understanding of civil procedure.
• Demonstrates adequate critical thinking.
• Demonstrates adequate synthesis and the ability to make a persuasive argument.
• Demonstrates accurate and clear understanding of civil procedure in sufficient detail.
• Demonstrates satisfactory critical thinking.
• Demonstrates satisfactory synthesis and the ability to make a persuasive argument.
• Demonstrates a well-developed understanding of civil procedure.
• Demonstrates well-developed critical thinking.
• Demonstrates well-developed synthesis and the ability to make a persuasive argument.
• Demonstrates a comprehensive, sophisticated and well- structured understanding of civil procedure.
• Demonstrates excellent critical thinking.
• Demonstrates excellent synthesis and the ability to make a persuasive argument.
Communication Effective communication (5 marks)
• Demonstrates poor communication skills and compliance with court etiquette.
• Demonstrates a lack of organisation and an ability to communicate an understanding of the issues, facts and law.
• Demonstrates satisfactory communication skills and compliance with court etiquette.
• Demonstrates satisfactory organisation and an ability to communicate an understanding of the issues, facts and law.
• Demonstrates good communication skills and compliance with court etiquette.
• Demonstrates good organisation and an ability to communicate an understanding of the issues, facts and law.
• Demonstrates very good communication skills and compliance with court etiquette.
• Demonstrates very good organisation and an ability to communicate an understanding of the issues, facts and law.
• Demonstrates excellent communication skills and compliance with court etiquette.
• Demonstrates excellent organisation and an ability to communicate an understanding of the issues, facts and law.