Mooting Essentials: Theory of the Case and Submission Best Practices

Announcements and Highlights

Negotiations competition ongoing; final tonight. Four finalists have worked hard and are competing. Open to peers to attend and support.
Venue for in-person final moots: HECO hub, across the road in the pink building (easy to spot).
Online moot available for online participation; prize money likely; open to everyone; if you missed last moot, try this one.
Tutorial on Monday conducted by Tompkins Wake.
Client interviewing competition available for those interested in negotiations/meeting clients; emphasis on practical skill for lawyers.
Andrew Hong from McCall Lewis is running for Wilson presidency; policies and team details available at yellowsharon.com; presence on Facebook, Instagram, LinkedIn.
Sign-up week for moot slots: students should sign up for a moot slot during workshops this week. If you still have workshops today or tomorrow, prioritise them.
By the end of your workshop, know three things:
1) Who your mooting partner is, and whether you are senior or junior counsel.
2) When your mooting slot is during the final three weeks of the paper; no-shows result in a zero because there is no spare capacity.
3) Whether you and your partner represent the appellant or the respondent (which side you are arguing for).
If you missed out on a mooting slot this week, there will be one more chance in the first week back after the teaching recess.
Teaching recess next week and the following week: no lectures or workshops. Use this time to finish finalising your client advice letter (due Friday) and utilise the flexible submission policy: you may submit up to
- ten working days after the due date if needed. This is a good window to polish the moot scenario material that will be released during this lecture.
Prioritise workshops, moot sign-ups, and knowing your mooting partner and representation.
Introduction to the speaker today: Andrew Hong (McCall Lewis), a long-time contributor to Te Paringa and to mooting; he’ll be teaching the mooting section and will return after the recess for further lectures.

The Speaker’s Opening and Core Philosophy

Andrew’s practical focus: court submissions and the preparation that precedes going to court. The firm’s philosophy: if something reaches court, something else has gone wrong and substantial effort has already been spent drafting client letters and related materials.
Court is a tool, to be used only when necessary; the objective in client advice and advocacy is not to win, but to advocate effectively for the client’s position.
Crucial idea: your job is to present the facts and legal test to a decision maker; you are not the ultimate decision maker, nor should you insert personal opinions or create new facts. Your job is to analyze facts, identify the key facts, apply the legal test, and present outcomes that align with the law.
You will be presenting a group argument, built on precedent law, rather than a personal position.

Core Concepts and Context for Mooting

Theory of the Case (to be taught in depth today): the foundational framework that underpins everything you do in mooting. It’s basically: why you win.
The Theory of the Case is essential because without understanding why you win, you cannot craft effective submissions.
You will use this theory to write submissions, argue in the workshop, and answer questions from the judge.
If you don’t understand the theory of the case, you won’t succeed in mooting.
NZLSA student survey (National level): annual input from students influences teaching directions and the Council of Legal Education. It informs macro trends such as mental health support, preferred practice areas, and overall student priorities.
- Contributions from Te Paringa: 2023, 2024, 2025; about 40 students from Te Paringa contributed over the three years.
- Observations: Commercial law remains the most popular field.
- Comparative note: University of Otago has the same number of students contributing but with half the contribution rate.
Practical takeaway: as a student, you have a few years to influence these surveys and the direction of legal education by aligning your voice with the wider student body.
Tikanga as a legal argument: recent Supreme Court decisions have begun to treat tikanga as a standalone argument, including potential as a primary argument. This introduces floodgates concerns about setting new precedent and lack of broad expertise in tikanga.
The judiciary’s caution about new legal theories: judges are wary of creating new precedent without robust, widely accepted support; this motivates the three-sentence theory structure to balance legal test, factual application, and a guardrail argument for potential loss.

Practice and Career Contexts

Andrew’s practice: civil litigation; focus on non-jury court work; not criminal or family law (though those areas have urgent, time-bound issues).
The nature of civil submissions: complex factual detail, long preparation time, and substantial research; but mooters typically have weeks to prepare, not years.
The role of settlement: aim to settle whenever possible; court is a last resort due to cost, time, and uncertainty.
Client realities: clients may present information that is not fully truthful or is influenced by AI-generated content; lawyers must cut through this and determine what is necessary to know and advise on.
Limitation and timeframes: crucial concept in civil claims; missing a limitation period can bar a claim. Common timeframes include:
- Standard limitation period:
- $6$ years (typical in many actions).
- Other acts and contexts may have shorter or longer periods (e.g., three years, two years, ten-year warranty in building-related matters).
- Special case: building warranty often has a default $10$-year limitation.
Obligation to advise on limitation: if a client comes with a claim late, you must inform them of the limitation consequences; failing to do so harms the client’s rights.
Court structure overview (high level): tribunals exist, with appeals available if the prior decision is challenged; higher courts may overturn or uphold decisions; the terminology shifts as you move through the system (plaintiff/applicant to appellant; defendant/respondent to respondent if the case is appealed).
Names and roles: initial party is plaintiff or applicant; if appealing, becomes the appellant; the other side becomes the respondent; if defending against an appeal, you are the respondent.

Theory of the Case: What, Why, and How

Theory of the Case (core definition): why you win; it must align with how the decision maker thinks and what factors influence their decision.
Practical advantage: you know who will judge you (your workshop tutor); you can tailor your theory to how they think, because you’ll have direct feedback on what they value in a mooting context.
Structure guidance for the two-to-three sentence theory:
1) Why you win legally: state the legal test and the controlling authorities (case law, precedent).
2) Why you win factually: identify the material facts that satisfy the legal test; map facts to the legal test to produce the preferred outcome.
3) Optional third sentence: a floodgates argument describing what happens if you lose; this can justify why the court should avoid setting new precedent that could be problematic; it also demonstrates awareness of broader implications and potential limitations of the argument.
Example and caution:
- Tikanga example: a standalone Tikanga argument could create a new cause of action but risks setting broad, potentially contentious precedent if not well-supported.
- Floodgates argument emphasizes the risk of creating new precedent and why a cautious approach may be warranted.
The three-sentence framework is not the whole process; it is a practical starter to ensure you cover legally, factually, and counterfactual consequences in your theory.
Practical tip: the tutor will guide you on how to frame your theory; the theory informs your written submissions and oral advocacy, and you should be ready to explain and defend it in front of a judge.

Writing Submissions: Structure, Style, and Signposting

Submissions are not a speech; they are written to guide your oral argument and provide a concise, structured outline for the judge.
Submissions should be written in IRAC style:
- Issue: state the legal question(s).
- Law: articulate the applicable legal test and authorities.
- Application: apply the law to the facts.
- Conclusion: state the outcome in your client’s favour.
Law style guide and referencing: you must adhere to the law style guide; use proper case citations; ensure consistent referencing and formatting.
Signposting in the written submissions is essential for oral flow: include clear markers such as 2.1, 2.2 to indicate sections and arguments; this helps the judge follow the structure and allows you to direct the judge during the oral stage.
Avoid verbatim, word-for-word reading from the submission in oral proceedings; use the written submission as a reference while speaking naturally.
Template and word limits: you will be provided with a submission template aligned with formatting requirements (e.g., margins, layout). Do not exceed the word limit; concise submissions are preferred; typical length might be around two pages for a concise submission under a tight word limit.
Content organization within a submission point:
- Issue: which issue is addressed.
- Law test: the legal test applied to the issue.
- Application: how the facts satisfy (or do not satisfy) the test; this is where the strongest material facts are highlighted early.
- Conclusion: the outcome for that issue.
The second-level structure within a submission point is often labeled as 2.1, 2.2, etc.; ensure you label as appropriate so you can discuss and signpost in the oral argument.
Practical tips for writing:
- Lead with your strongest material in the most persuasive way.
- Do not rely on a single point; present multiple strong points early.
- Ensure consistency in capitalisation and terminology; the word “judgement” (without an “e” in American spelling) vs “judgment” with an “e” can be a common pitfall; adhere to the law style guide’s usage.
- Use citations for legal authorities; quotes should be used when necessary and paragraphed with the proper citation.
- If quoting, indicate the exact paragraph or sentence; otherwise, paraphrase and cite the source.
Example of a strengthened submission structure:
- Issue 1: [Topic]
- Law: [Test and authorities]
- Application: [Facts mapping to the test, with citations]
- Conclusion: [Outcome]
- Issue 2: [Second Topic]
- Law: [Test and authorities]
- Application: [Facts mapping to the test, with citations]
- Conclusion: [Outcome]
Use of the IRAC approach consistently ensures the judge can see the logical progression from issue through to conclusion and can verify the legal basis for the conclusions.

Presenting Your Theory of the Case in Practice

Your theory should be tailored to the workshop judge’s thinking; you can obtain explicit guidance by asking tutors questions such as:
- What makes a convincing legal test in this context?
- Which facts most strongly support the legal test?
- What happens if you lose this argument? Could it create a problematic precedent?
The theory should be concise: two to three sentences are often sufficient, as described earlier.
Theory should be tested: work with a partner and the tutor to develop the theory of the case and test it against possible counterarguments.
The next workshops provide exercises to refine the theory of the case before applying it to the Moot problem.
You will be using a standard submission template; adhere to the template’s formatting rules and the contest’s word limit.

Practical Guidance on Moot Problem Setup

Before reading the moot problem, complete your client letter; the letter’s content will influence your moot problem understanding.
After drafting the letter, read the moot problem and use it to identify your material facts (those that matter for your client’s position) and the relevant law.
The moot problem will present issues, a body of law, and a set of facts; your goal is to advocate for a particular conclusion based on whether you are the appellant or the respondent.
The “theory of the case” exercise will include a separate exercise not directly tied to the MOOT problem to help you develop the concept before applying it to the MOOT problem.
You are encouraged to use the provided submission template; there is a word limit; do not exceed it.
There are formatting requirements for written submissions (e.g., left-hand margin around five centimeters) that you must follow; the template is designed to comply with these requirements.
Preparation tip: learning how to speak like a lawyer in court is as important as written submissions; the lecturer will cover this in the next sessions, but you should also practice with the workshop tutors.

Courtroom Etiquette, Style, and Strategy Tips

Court rules govern the proceedings; judges can direct how arguments are presented and what is permissible.
Formal attire expectations (high court specifics): dark clothing, a white shirt, a tie, and black shoes; informalities such as brown shoes can lead to immediate dismissal.
In the high court or above, additional formalities may apply, such as attire and dress code; ensure you follow the guidelines to avoid nitpicking.
The role of the lawyer is to present a well-structured argument and to maintain professional etiquette; the judge will assess the substance and the presentation.
You should keep in mind that the written submissions are permanent records that judges and tutors will refer to after the hearing; the oral submission should reflect and expand on these written materials.
The purpose of a well-structured submission is to provide the judge with a clear map of your arguments and to support your speaking style; the oral presentation should not be a script but should flow from the written materials.

The Moot Problem, Letter, and the Pre-Reading Process

The moot process involves drafting a client letter and a moot problem, identifying material facts and the law.
The letter should be completed beforehand, as it informs the moot problem and helps you identify key issues.
The material facts are those that support your client’s position; not every fact is relevant, but the relevant facts form the basis of your arguments.
The case law at the end of the problem is your relevant authorities; use these to support your legal tests.
The issues statement will indicate whether you are arguing as appellant or respondent; ensure you adhere to the indicated stance.
Theory of the case development is crucial: create and test a theory with your partner and workshop tutor; you will practice applying it to the moot problem.
Use the submission template; keep strictly within the word limit; you can draft and refine before final submission.

The Next Steps and Session Schedule

The next lecture is scheduled for September 4, after the teaching recess.
Andrew will be back for the next sessions to continue developing the mooting framework and practice.
Keep attending workshops, sign up for moot slots, and continue refining your theory of the case in preparation for the moot problem.

Quick References and Example Details

Time allocations:
- Oral submissions: $ ext{duration} = 7.5$ minutes, i.e., $7.5$ minutes.
- Written submissions: two to three arguments; tends to be concise due to the word limit.
Limitation periods (examples):
- Standard limitation: $6$ years.
- Alternative: $3$ years or $2$ years in some contexts; extended up to $10$ years under certain acts (e.g., building warranties).
- If a claim is time-barred, a court will dismiss it, and a lawyer’s duty is to inform the client accordingly.
Formal elements of a mooting argument:
- Issue, Law, Application, Conclusion (IRAC) structure for each argument.
- Signposting using subsections (e.g., 2.1, 2.2) to guide the judge.
- Prioritize your strongest points early in the submissions.
- Floodgates argument may be used as a guardrail for potential loss and to discuss broader implications of the argument.
Important conceptual notes:
- Theory of the Case is the central framework for all mooting activities.
- Your job is to present the case in terms of the law and the facts; you are not inventing facts or arguing your personal belief.
- Settlement is often preferable to court; court remains a tool for resolving disputes when necessary.
Case study example referenced:
- Justice Becroft’s High Court decision (family court context) where a kid (Claude) influenced a decision by speaking with the judge; demonstrates creative use of the process to resolve disputes.

Summary Takeaways

Master the theory of the case: two to three sentences (legal test, factual mapping, optional floodgates guardrail).
Craft written submissions with IRAC structure, tight signposting, and strict adherence to a law-styles guide for citations and formatting.
Front-load your strongest material in both written and oral forms; do not rely on a long culminating argument.
Be mindful of limitation periods; communicate clearly with clients about time limits and potential bar to claims.
Use the workshop as a resource to tailor your theory to how the judge will think; this is a unique advantage in academic mooting.
Approach mooting as a professional training exercise: it mirrors real-world advocacy, emphasizing clarity, structure, and the legal test over personal persuasion.

Note on Terminology Used in the Transcript

Appellant vs. Respondent: the party appealing remains the appellant; the other side is the respondent.
Plaintiff vs. Applicant: initial party in a court action; if an appeal occurs, they may become the appellant or respondent depending on the side of the appeal.
IRAC: a standard legal writing framework used in submissions.
Tikanga: the discussion around tikanga as a potential standalone legal argument and the related concerns about creating new precedent.
Floodgates: a rhetorical tool to discuss the risks of broad or novel legal theories creating wide-reaching effects without robust precedent.
Law style guide: standardized citation and formatting rules used in legal writing.