[An edited version of this article is also published on the University of Malaya Law Review website.]
Mooting has become a significant part of the law school experience in Malaysia. Most universities have it as a compulsory module, and students are also exposed to various national and international competitions outside of the curriculum.
While some approach it as an educational tool that can equip students with advocacy, drafting, and research skills, others view it solely as an academic sport, detached from practical legal education. Both approaches entail different consequences.
This article delves into the fundamental disparities between mooting and real-life practice and answers the question:
Will educational or competitive mooting better serve law students?
What's the Big Deal?
When it comes to mooting in law school, there are two distinct paths that institutions can take — an educational path or a competitive path.
The educational approach prioritises inclusive learning, ensuring that every student is given the opportunity to develop their advocacy, drafting, and research skills, leaving no one behind. In contrast, the competitive approach emphasises competition and focuses on cultivating the most talented students to win international titles, enhancing the reputation and morale of the institution.
From another lens, the educational approach might strike some as the faculty shoving moot training down the throat of every student, regardless of its actual effectiveness or the students’ interest. The competitive approach is no better. It might come across as discriminatory elitism, for having a disproportionate amount of faculty resource and attention devoted to a special group of students.
This is the dilemma that every Malaysian law school is facing, whether they acknowledge it or not. The challenge only grows bigger with an ever-expanding student population in an environment where resources are often limited.
Hold On, What Even Is Mooting?
For the uninitiated, “mooting” is “the argument of the legal issues raised by a hypothetical case which takes place in the imaginary setting of a court of law”. The term originates from the Latin “moveo”, which means “to move, agitate, or debate”, symbolising the arguing of cases.
The practice of mooting has been around since the late 14th century in the Inns of Court of England. As part of the preparation for the call to the Bar, “during term time cases were argued after dinner, and moots were held after supper”.
However, what began as an educational tool for aspiring barristers slowly deteriorated over the centuries. By the 18th century, journal entries indicated that the post-dinner moots were only practised for the sake of practising, where these exercises “had become an excuse for extravagant entertainment of the bar by the students”. Due to this disrepute, mooting exercises at the Inns of Court slowly disappeared as the 18th century came to an end.
It is only in the late 19th century, 1870 to be exact, that mooting experienced a revival, in the United States no less. As a complement to legal lectures, Harvard Law School decided to introduce moot court exercises post-lecture where students would argue cases before their professors.
Although it was practised well, moot courts eventually became redundant as the case method of instruction became the standardised form of legal education. Thankfully, students who had a burning passion for mooting did not stop there.
Through their own initiative, they formed student-run moot clubs and held various competitions. It was so successful that Harvard ultimately gave the green light to their student-run moot programme as an addition to the formal legal education they provide.
And that brings us to what mooting is like today, around the world — an extracurricular activity run largely by law students, for law students.
Educational Mooting in Local Universities
When Malaysia decided to establish law schools locally, mooting was already gaining steam a popular academic sport. Seeing its benefits, most Malaysian law schools made the move to implement mooting as a formal course throughout the years. Adopting this educational approach, every student will be trained in the dark arts of mooting in law school. Just look at this table that we compiled!
Institution | Mooting Module | When is it taught? |
UM | / | Year 2 |
IIUM | / | Year 2 |
UiTM | / | Year 2 |
UUM | / | Year 4 |
USIM | / | Year 5 |
MMU | / | Year 2 |
Taylor's University | / | Year 2 |
UKM | X | - |
UniSZA | X | - |
HELP University | X | - |
Table 1: Compulsory mooting modules in local law schools
Why do most of our local law schools make mooting compulsory for undergraduates? Surely not all students want to moot and due to the scarcity of competitions — not all can. That is why one can deduce that these mooting courses are intended simply to (1) expose students to mooting and more importantly, (2) to develop their advocacy, drafting, and research skills for legal practice.
Inadequate Course Planning
Here's why educational mooting is not ideal. If the purpose truly is to make mooting more accessible and to allow students to make an informed decision on mooting, officially introducing mooting to students from Year 2 onwards is simply too late. Many first-year students have already started dipping their toes in mooting outside of the classroom. Some may even be winning competitions already. Forcing these students to sit through compulsory moot court training is simply a waste of time.
Also, most of these institutions already teach undergraduates advocacy, drafting, and research skills through practical modules in the final year. Check out this other table that we compiled which highlights the overlap!
Institution | Mooting Module | When is it taught? | Professional Module | When is it taught? |
UM | / | Y2 | / | Y4 |
IIUM | / | Y2 | / | Y4 |
UiTM | / | Y2 | / | Y4 |
UUM | / | Y4 | /* | Y4 |
USIM (5-year) | / | Y5 | / | Y5 |
MMU | / | Y2 | / | Y4 |
Taylor's University (3-year) | / | Y2 | X | X |
UKM | X | X | / | Y4 |
UniSZA | X | X | / | Y4 |
HELP University (3-year) | X | X | / | Y3 |
*UUM combines litigation and mooting under one module.
Table 2: Professional modules and compulsory mooting modules in local law schools
Simply put, if local law schools had intended their compulsory moot modules to not have a competitive objective, then these modules must have an educational end. However, this supposed educational goal appears redundant because final-year professional modules overlap with mooting modules in terms of their objective. It is unclear whether these modules are supposed to be substitutes, complements, or repetitions of each other.
Effectiveness of these courses must also be called into question, skills such as advocacy cannot be built overnight, or in this case over a semester, because it requires continuous practice and detailed feedback that can only be achieved in a focused tutorial setting, which is the type of proper advocacy training one gets from mooting, with countless training sessions packed with constructive feedback from a coach.
Moot Court vs Real Court
Despite being one of the closest experiences to actual courtroom advocacy, moot court is far from practice. It has evolved to have its own format and conventions, akin to debate competitions.
That is why counting heavily on mooting to produce practice-ready advocates is like trying to fit a round peg into a square hole. The mismatch is apparent when we evaluate mooting based on three foundational skills are relevant to actual practice — advocacy, drafting, and research.
Advocacy
In moot competitions, cases are won based on oratory skills. But in real courts, cases are won by merits. To quote an American judge, “moot court judges grade advocates. Court of appeals judges decide cases. The difference is vast.”
When submitting in moot courts, heavy emphasis is placed on confidence, flare, responsiveness to the bench, and (witty) rebuttals. This is often attributed to the subconscious narrative that there is no tangible outcome to a moot case and as such strict scrutiny to the merits are secondary to the advocacy and skills of the mooter.
On the other hand, actual courtroom submissions are slower paced, placing more focus on court language, structure, and clarity of arguments. Hence, techniques that work in mooting might even produce an opposite result when it comes to actual practice before a judge.
As an educational tool mimicking practice, mooting has failed because it emphasises on the wrong aspects of advocacy. Imagine teaching medical students that bedside manners are more important than whether a patient survives—that is what educational mooting is doing to law students.
Students should be trained to craft and present structured and clear arguments, without regard to the theatrics which obfuscates their substance. Unfortunately, advocacy training à la mooting makes things needlessly complicated with its emphasis on style.
Zooming in on the point of (witty) rebuttals, a mooter’s primary concern is to appear clever rather than to prioritise the client’s interests (if there was one). Thus, mooting teaches one to make the most of their time on the podium to simply show off. In real life, however, it is not unusual to see lawyers yield their time if a case is already going their way. It is, in fact, recommended by seasoned advocates and judges to waive their rebuttal in such cases, so as to not flay a dead horse back to life (which a mooter might well do).
Another common occurrence is local moot judges not being as well versed with the case brief as compared to court judges, and understandably so, because moot judges are often high-ranking practitioners/judges who do not have the luxury to take time off their real-life practice and cases to prepare for a simulation moot by students.
The unfortunate by-product of this is that moot judges often are unable to critique and judge teams on the quality of arguments and law and resort to questions of logic and common sense, which is good, but not sufficient to adequately assess a team. The questions asked will test the oratory skills of the mooters, but they may not necessarily be the questions judges would ask if they were trying to decide on a legal issue.
On the other side, mooters will try hard to score brownie points by giving clever or bombastic answers that play to the audience, like how they have been trained. In contrast, however, sounding like a smart aleck would not be on the forefront of an experience litigators mind, purely because it would distract the case from the main issue and the client’s interest.
More dangerously, competitive mooters have the luxury of time to hone their arguments and perfect their delivery, resulting in a polished and romanticised form of advocacy. Unfortunately, this illusion can mislead budding barristers into thinking that mooting prepares them for real-life courtroom arguments. The truth is that mooting paints a misleading picture of the complexities and challenges of actual courtroom advocacy.
Drafting & Research
One would assume that after writing a few memorials for moot, they would be more practice-ready in terms of drafting. This assumption is wrong because every moot competition has their own format when it comes to written memorials. Some competitions do not even require written memorials— and for the few that do, teams are often not bound or constrained by their pleadings which enforces a narrative that written submissions are secondary to oral submission which results in mooters often taking memorials for granted.
Moot competitions are also not very educational as constructive comments are rarely given for memorials. Teams will get a high or low score and it will be up to themselves to figure out what went right or wrong. This is notwithstanding the different standards of marking by different markers.
This lack of regard for written memorials does not reflect practice. Unlike in moots where the written submissions are barely read, a judge hearing a real case will rely heavily on written submissions. In real life, these written submissions are at the front and centre of every dispute and oral arguments are merely a means of clarification and emphasis.
Also, the process of drafting memorials for moot differs from practice. There are usually two to five members in a moot team and the memorial writing would be divided between the team members, with each in charge of a legal issue. Most moot problems are also designed to have equally weight issues to suit the team system.
Mooters end up being familiar with the issue that they oversee, leaving the other issues for their co-counsels. This is a bad habit that mooting has inculcated in budding lawyers, that they can divide arguments up and focus only on a single issue.
Not only do legal issues in real cases differ in weightage, but they also frequently overlap. What happens when a judge asks a question about another issue? A counsel who is unfamiliar with it will take time explaining that this issue will be explained by their co-counsel. And by the time the co-counsel speaks, the question would have been forgotten.
Also, if it seems like a judge has no interest on a particular point of submission, a counsel who is only focused on one issue cannot move on to the next issue, which is reserved for his co-counsel, being the one more familiar with it.
In real life, good lawyers immerse themselves into the drafting and research of their case, and are ready to submit on any issue when they stand before a judge.
Due to this problem-solution mismatch, what we can say is that mooting is excellent training for law students, but only for moot competitions and not for practice. The scope of mooting is too niche for it to be something that must be taught to every law student, lest it be a waste of effort if not tailored to specific competitions.
What About Education Then?
Keeping it short, mooting does not have to be educational because advocacy, drafting, and research are already being taught through practical modules, in a manner that is much more relevant and effective.
If we talk about courtroom advocacy training, final-year advocacy modules are already the training. If we talk about confidence and style training, this can be done and is being done in every student presentation in every other class. Mooting should be extracurricular.
If we talk about drafting, the drafting courses are more than enough to prepare students for practice. Students are taught to follow the proper format and requirements of local courts, instead of being confused with the different formats different moot competitions employ.
Lastly, legal research should be prevalent in every other law module. Whatever mooting has to offer in this respect is merely a bonus.
An Academic Sport, Through and Through
Even though mooting is a beneficial extracurricular activity, it does not warrant a compulsory academic course that every student must go through. This is where we draw the line.
Mooting is a sport. An academic one, if you will. The training it provides is tailored specifically to relevant competitions, not legal practice. Hence, educational mooting is not just pointless, it is dangerous for giving false impressions.
If local law schools want practice-ready graduates, and intend to provide better advocacy, drafting, and research training for all students, then the proper action for faculty leadership to take is to review pre-existing practical courses to better fit the requirements of practice nowadays.
If educational mooting means having an additional mooting module, then it will not solve anything. This is merely a band-aid solution that does not address the needs of the faculty nor the students.
Let mooting stay and thrive as a beautiful sport. Let us not be the Asian parent here and force it down our children’s throats.
_JPG.jpg)
Comentários