RESEARCHING A MOOT

PROBLEM
TRAINING SESSION 3
WEDNESDAY 25TH AUGUST 2021
7.00 TO 8.00 PM
 OUTLINE OF THE TRAINING SESSION
1. Deliberate reading of the problem; Issue identification and factual analysis.
2. Before starting the research
3. Reading skills to save time; Relevance
4. When to start the research process
5. How to look and actually find the right information.
6. What you are looking for
7. Working with various sources
8. Following the leads
9. How long you need to look: Until when?
10. Evaluating the research results: Is what I found valuable?
11. What to with your research results.
12. And then what next?
13. Common mistakes and how to overcome them
14. Exercise 3
 BEFORE STARTING THE RESEARCH

• Before you start researching the law

• Read the moot problem carefully
• Determine which party you are arguing for (applicant/respondent)
• Determine which points of LAW you are arguing for or against
• Create a timeline (different form a schedule) for the events set out in the moot
problem.
• It is important to time yourself appropriately, but start NOW!
• Have a look at the competition rules and be keen
 READING THE MOOT PROBLEM

• INTERNATIONAL
- GENERAL PIL ISSUES ( Intro, Sources,
Recognition, Treaties, Immunity,
Responsibility)
- Intl Civil Aviation Get your FACTS
- Intl Human Rights
- Intl Humanitarian Law RIGHT • Know what is required of
- Intl Environmental law
you
- Intl Economic Law
- Law of the Sea
• Be Keen on Preliminary
- Law of outer space issues
- Intl Labour Law - Jurisdiction- 4 types
- Intl Migration law
(international v national)
- Intl Labour Law • Timeline of events-
a. Ratione materiae, loci,
• DOMESTIC Dates temporis, personae
• Public- Con law, Admin law, Crim law, • Facts placed b. Original, appellate,
LDG
• Private- Contract, Tort, Commercial, deliberately pecuniary, eqitable eg
Company (LBA) • Parties and People anxilliary
• General- LSM, LRW, SFL, Comm Skills, - Locus standi
Jurisprudence involved
• Relevant FACTS - Admissibility
• Memorize the
• MERITS
Identify the paragraphs
The Real Issues
Subject Area of
Law, and Legal • GOOD and BAD facts AFTER READING
issues. • ILLUSTRATE IN A
DIAGRAM- Visual aids.
 WHEN TO START THE RESEARCH
PROCESS
• Get legal background for the subject
• Find legal authorities to back up your argument
• Whatever you do, do not just start typing yet; or diving into books
• Getting started with you legal research
• Prepare a research plan
• Use the sources
• Following leads
• Evaluate the information
• Troubleshooting
 READING SKILLS TO SAVE TIME;
RELEVANCE
I. Have a clear focus for your reading. Set your reading goals.
II. Survey the text before you spend the time and effort involved in detailed
reading.
III. Scan and skim to select the text for detailed reading.
IV. Scan and skim after detailed reading to reinforce your understanding.
V. Use a form of note taking whilst reading in detail, to keep you
concentrating, aid understanding and provide you with a record of your
reading.
VI. Using clear reading goals and a variety of reading skills is more important
than increasing your reading speed.
VII. To improve your reading speed, don't increase the speed of the eye across
the page, but increase the number of words the eye recognizes in a single
fixation.
HOW TO LOOK FOR IT: THE RESEARCH PLAN

PARTS OF A RESEARCH PLAN

• Key words and key concepts
• The broad topic
• Legal terms and synonyms for them, Latin
• Case names or legislation cited in the problem
• How are you going to find the answer?
• What types of sources (Primary and secondary)- books, cases and
articles, (legislation)
• Sources of those sources- relevant textbooks, relevant databases,
article indexes
 WHAT YOU ARE LOOKING FOR
IDENTIFYING KEYWORDS IN PROBLEMS
• Legal terms and not the facts of the case
• Good starting point- words used by trial judges or other people involved
• Have your points of appeal been set out?
• What do you need to know more about or don’t understand?
• Do you recognize if your case is based on a real case?

CHOOSING YOUR SOURCES

• Starting with secondary sources- work already done for you
• Databases are too large if you don’t have a background in the subject
• Textbooks- look on the catalogue or on a reading list (or ask a librarian)
• Articles- search using your journal indexes
• Remember other possible hard copy sources- encyclopedias, law reviews,
commentaries
 USING SPECIFIC SOURCES

Textbooks and encyclopedias

• Use the index to find key terms, look for synonyms.
• If you already have a case or legislation look up in the tables at the front
• If your keywords do not appear in the index, look at the broader subject
matter in the table of contents.
Searching for articles
• Use advanced search with the keywords identified (remember to try using
connectors for relevance and remember databases do not act in the same
way as google)
• If you have a case or legislation then look for this especially if there is a field
on the search screen that allows it.
 OTHERS: FOLLOWING THE LEADS
• Using case and legislation citators (to find • Journal articles cited
out more about them) • Books referenced
https://www.lexisnexis.com.au/pdf/quickrefer • Article and Book analysis
enceguide-casebase.pdf • Always read the abstract first, and
fast
• Case analysis • Author(s)
• Judgements rendered (majority, • Editor(s)
concurring, dissenting)
• Publisher
• Where reported
• Year of publication
• Case digest
• Host Journal
• Appellate history and status
• Main arguments
• All and Significant cases cited
• Contribution to the existing
• All and Key cases citing it
literature
• Distinguishing FACTS- Why • Literature review
should the judge use it?
• References
• Footnotes
• A good source of further information on the points

• Other texts and articles

• Look at other what other articles have been cited (for example in google scholar
there is a cited by option).
 HOW LONG YOU NEED TO LOOK: UNTIL WHEN?

• Keep going until you think you have enough to base your argument on.
• Remember to stop when you come to a dead end. Frustration or side tracked.
If you cant find information in 15 minutes, look for other terms in your research
plan
WHAT IF YOU CAN’T FIND ANYTHING?
• Go back to the research plan and find out if there is anything you have missed
• Are there any keywords you have not investigated?
• Are there any sources you have not used- try a different textbook or databases
• Talk to other students /librarian/tutor if the rules allow.
 EVALUATING THE RESEARCH RESULTS
• First, RECORD your information in one book at each step as comprehensively
as possible to avoid loss and save time going back. You wot do the footnotes
well later (unless you are sure you know the source.)
• Finding out whether the information is correct
• Secondary sources: Is it up to date/still in force
• Secondary sources: From a recognized or accurate source? Important databases
(Blogs versus subscription based databases)
• Legislation: Is it up to date/still in force?
• Case law: Still good law? Its development over time (some are so significant)
• Case law: Subsequent treatment?
• Case law: What court is it in?
 WHAT TO DO WITH YOUR RESEARCH: WRITING
MEMORIALS
What do you do with all the information • Have you read it properly?- refer to case
analysis
that you have now?
• The court is it fom –v- the one you are in.
STRUCTURE OF A SKELETON • Jurisdiction of the court/ case
ARGUMENT • Is it binding on the court or merely
persuasive?
1. Apply the law to the facts in your
moot problem. IFLAC
What if the cases you find are all
2. What are you going to argue?- Critical against you?
3. Which authorities are you going to - Use case citators to find distinguishing
use to back up your argument? cases
• Cases - Look to where your facts are different-
• Is it on point/does it back up your problems drafted to allow you to
argument?
 AND THEN, WHAT NEXT?
I. After you are comfortable with your research, you know how you want you
arguments and have authorities to back up the arguments.
II. Have another look at the moot problem to ensure you have not veered of course.
III. Look at the Competition rules
a. How much time will you have to argue
b. If you are the appellant will be a right to reply?
c. When and in what format do you need to submit your skeleton
argument/memorials ?
d. Are there any restrictions on how many cases you can use or what type of
sources you can cite?
IV. Go over your argument with your moot partner, you cannot contradict each other.
V. MAINTAINA A DATABASE OF ALL MATERIALS YOU HAVE- SOFT OR HARD
VI. Prepare MEMORIALS
VII. READ OR ANTICIPATE YOUR OPPONENTS SUBMISSIONS
 COMMON MISTAKES AND HOW TO AVOID THEM

BIGGEST: CHOOSING A PARTNER THAT IS NOT COMMITTED

I. Not reading you moot problem carefully/deliberately/ properly: Words, sent,
Para
II. Arguing about the facts (black in white) of the case instead of analyzing
III. Reading your notes like a script. Tell a story that flows logically. Practise
IV. Sharing the work and stopping there. Poor research coordination
V. Not reading the sources of law comprehensively beforehand to extract all the
relevant information.
VI. Not having a clear bundle of authorities
VII. Running out of research time OR Wastting it
VIII. Balancing between principles of law and the facts in your case
 EXERCISE 3: LIST OF AUTHORITIES
SOURCES INTERNATIONAL (Art 38 statute of ICJ) DOMESTIC (S3 Judicature Act
Cap 8 LOK)
PRIMARY TREATIES CONSTITUTION OF KENYA (AND
CASES)
CUSTOMARY INTL LAW WRITTEN LAWS (AND CASES)

GENERAL RULES OF INTL LAW ACTS OF UK IN THE SCHEDULE

JUDICIAL DECISIONS SUBSTANCE OF COMMON LAW

DOCTRINES OF EQUITY

STATUTES OF GENERAL
APPLICATION
DOCTINAL WRITINGS OF PUBLICISTS AFRICAN CUSTOMARY LAW
SECONDARY SOFT LAW BOOKS
BOOKS JOURNAL ARTICLES
JOURNAL ARTICLES THESES AND DISSERTATIONS
ENCLYCLOPEDIAS GOVT DOCUMENTS (3 ARMS)
UN DOCUMENTS (AND OF OTHER IOs):
NGOS