Written by Edward Lee Way Yang & Nevyn Vinosh Venudran, Class of 2023, Faculty of Law, Universiti Malaya. Edited by Abby Si Xinyi. Reviewed by Pravena Sreetharan. 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, highlighting the shortcomings of relying on mooting as an educational tool. Instead, this article posits that mooting should be regarded a competitive sport, and law schools should provide a comprehensive legal education, separate from mooting, that focuses on practical skills. I. 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 to ensure 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. Through another lens, the educational approach might strike some as an institution mandating moot training for every student, having no regard to its actual effectiveness or the students’ interest. The competitive approach is no better, as it might come across as discriminatory elitism, for having a disproportionate amount of faculty’s resources and attention devoted to a special group of students. This is the dilemma that every Malaysian law school faces, whether it is acknowledged or not. The challenge is only exacerbated in an environment where resources are scarce, and the student population is ever-expanding. II. SOME CONTEXT, PERHAPS? A. Brief History of 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’.[1] The term originates from the Latin ‘moveo’, which means ‘to move, agitate, or debate’— symbolising the arguing of cases.[2] 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, ‘cases were argued after dinner, and moots were held after supper’.[3] 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’.[4] Due to this disrepute, mooting exercises at the Inns of Court gradually vanished as the 18th century came to an end.[5] It was only in the late 19th century, in the year 1870 to be exact, that mooting experience a revival, in the United States of America in particular. Complementary to legal lectures, Harvard Law School decided to introduce moot court exercises post-lecture where students would argue cases before their professors.[6] Although it was practised well, moot courts eventually became redundant as the case method of instruction developed into the standardised form of legal education.[7] 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 to be an addition to the formal legal education provided.[8] And that brings us to what mooting is like today, around the world: an extracurricular activity run largely by law students, for law students. B. Mooting Education in Local Universities When Malaysia decided to establish law schools locally, mooting was already gaining steam as a popular academic sport. Seeing its benefits, most Malaysian law schools made the move to implement mooting as a formal course throughout the years. Having adopted this educational approach, every student is trained in the dark arts of mooting in law school. Such data is compiled into the table below.
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. III. WHY IS EDUCATIONAL MOOTING NOT IDEAL? A. Inadequate Course Planning 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. The question thus arises as to whether mandating students to sit through compulsory moot court training is simply a waste of time. In addition, most of these institutions already have undergraduate modules on advocacy, drafting, and research in the final year. The authors have compiled significant data into the table below which highlights the overlap.
*UUM combines litigation and mooting under one module. Table 2: Practical 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 practical 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 one another. 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 — the type of proper advocacy training one gets from mooting, with countless training sessions packed with constructive feedback from a coach. B. 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 relevant to actual practice — advocacy, drafting, and research. 1. 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.’[29] When submitting in moot courts, heavy emphasis is placed on confidence, flair, 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 is 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, the authors opine that 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.[30] Students should be trained to craft and present structured and clear arguments, without regard to theatrics which obfuscate 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,[31] so as to not flay a dead horse back to life (which a mooter might well do). Another common occurrence is local moot judges are not as well versed with the case brief when compared to court judges, and understandably so, because moot judges are often high-ranking practitioners or judges who do not have the luxury to take time off their real-life practice to prepare for a simulation moot by students. The unfortunate by-product of this phenomenon is that moot judges often are unable to critique and judge mooters on the quality of legal arguments and resort to questions of logic and common sense, which may be good, but insufficient to adequately assess mooters. The questions asked will undeniably 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 real legal issue. Conversely, mooters often 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, doing the above would not be on the forefront of an experienced litigator’s mind, purely because it would distract the case from its main issue as well as the client’s interest.[32] 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 inaccurate picture of the complexities and challenges of actual courtroom advocacy. 2. Drafting and research One would assume that after preparing a few memorials for moot, they would be more practice-ready in terms of drafting. The authors opine that 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. This enforces a narrative that written submissions are secondary to oral submission often resulting in mooters taking memorials for granted. Moot competitions are arguably also not very educational as constructive comments are rarely given for memorials. Scores are awarded arbitrarily, and it is often up to the mooters to ascertain what went right or wrong with their memorials. Teams will either 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 legal practice. Unlike moots where the written submissions are barely read, a judge adjudicating a real case will rely heavily on written submissions. In practice, these written submissions are at the front and centre of every dispute and oral arguments are merely a means of clarification and emphasis.[33] In addition, 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 one legal issue. Most moot problems are also designed to have equally weighted 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.[34] 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. 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 cases, and are ever-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 an excellent training for law students, but only for moot competitions and less 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. C. Bad Yardstick of a Good Advocate If mooting is viewed as a primary method to train advocacy, then mooting achievements would be the yardstick to determine whether one is a good advocate or not. In other words, if you are not a moot champion, you are not good enough. This is a misconception commonly perpetuated in moot competitions as we do not account for the disparity in language proficiency that exists within the Malaysian demographic. Here comes the problem. The competitions that matter most are international competitions which comprises teams from all over the world. Usually, native English-speaking countries enter these competitions with an advantage over English as Second Language (‘ESL’) countries due to a language bias. To compare our fellow compatriots with them is fighting an uphill battle due to the lack of ESL judges and comprehensive judging guidelines to counter the subconscious bias. This leads to ESL mooters rarely outperforming native speakers in international competitions, which creates a misconceived notion in the minds of our budding lawyers that while we may try, we will never be great advocates. Arguably, students who do not participate in competitions have it worse since the impression is that they are not even trying to prove themselves to be good advocates. It would be criminal to equate advocacy to proficiency of language. Advocacy is the art of persuasion focused on clarity and quality of arguments regardless of how a mooter may sound. Thus, it is simply unproductive for law schools to place mooting in the front and centre of every student’s mind, giving them the impression that if they do not do well in mooting, then they are not going to be great lawyers. IV. WHAT ABOUT EDUCATION THEN? In brief, 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. On courtroom advocacy training, the authors argue that the final-year advocacy modules are already the training. Pertaining to confidence and style training, this has always and could be done through student presentations in every other class. As such, mooting should be extracurricular. For drafting, the legal 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. V. CLOSING THOUGHTS Even though mooting is a beneficial extracurricular activity, it does not warrant a compulsory academic course that every student must go through. 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 appropriate action for faculty leadership to take is to review pre-existing practical courses to better meet the requirements of practice today. If educational mooting means having an additional mooting module, then it will not solve anything. This is merely a band-aid solution that neither addresses the needs of the faculty nor the students. Let mooting stay and thrive as a beautiful sport. Let us not force it down our children’s throats. If you like articles like this, head over to hitamputih.blog to read more! Disclaimer: The opinions expressed in this article are those of the authors and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with. Footnotes:
[1] Snape, J., & Watt, G. (2010). How to Moot: A Student Guide to Mooting. New York, US: Oxford University Press, 3. [2] Rachid, M. & Knerr, C. (2000). Brief History of Moot Court: Britain and U.S. Annual Meeting of the Southwestern Political Science Association Galveston, Texas (pp 1-11). Galveston, Texas, 1. [3] Holdsworth, W. (1909). A History of English Law, Volume 2. London, UK: Methuen, 507. [4] Holdsworth, W. (1938). A History of English Law, Volume 12. London, UK: Methuen, 78. [5] See footnote 4 above. [6] Martineau, R. (1989). Appellate Litigation: Its Place in the Law School Curriculum. Journal of Legal Education, 39(1), 71, 72. [7] See footnote 6 above. [8] See footnote 6 above, 73. [9] Fakulti Undang-Undang, Universiti Malaya. (2019). Struktur Pengajian Ijazah Program Sarjana Muda Undang-Undang. [10] Ahmad Ibrahim Kulliyah of Laws. (2021). Proposed Study Plan For Bachelor Of Laws (Ll.B) (Hons.). Retrieved from <https://www.iium.edu.my/media/69577/LLBSMS%20STUDY%20PLAN_201XXXX_REVISED%20COURSE%20CODE_APR2021.pdf>. Site accessed on 8 Mar 2024. [11] Universiti Teknologi MARA. (2020). Course Outline Programme LW224 – Bachelor of Law (Hons). Retrieved from <https://www.studocu.com/my/document/universiti-teknologi-mara/law/course-outline-llb-lw224/24908870>. Site accessed on 8 Mar 2024. [12] School of Law, Universiti Utara Malaysia. (2022). Panduan Akademik Sesi Kemasukan 2022/2021 Pusat Pengajian Undang-Undang. Retrieved from <https://drive.google.com/file/d/1zNcGoCio69-eZqmjx1KIg66ikBKXDVa-/view>. Site accessed on 8 Mar 2024. [13] Universiti Sains Islam Malaysia. (2017). Bachelor of Law and Shariah with Honours. Retrieved from <https://drive.google.com/file/d/1GNA6fYCfQocS-WpfmU1pdQZIRQeykUHA/view>. Site accessed on 8 Mar 2024. [14] Multimedia University Malaysia. (n.d.). Bachelor of Law (Hons.). Retrieved from <https://www.mmu.edu.my/programmes-by-faculty-all/programmes-by-faculty-fol/bachelor-of-law-hons/>. Site accessed on 8 Mar 2024. [15] Taylor’s University. (2019). Law. Retrieved from <https://taylorsuniversity.in/pdf/prospectus/Law.pdf>. Site accessed on 8 Mar 2024. [16] Universiti Kebangsaan Malaysia. (n.d.). Ijazah Sarjana Muda Undang-Undang dengan Kepujian. Retrieved from <https://www.ukm.my/portalukm/ms/prasiswazah/sarjana-muda-undang-undang-dengan-kepujian/>. Site accessed on 8 Mar 2024. [17] UniSZA. (n.d.). Bachelor of Laws with Honours. Retrieved from <https://www.unisza.edu.my/our-faculties/bachelor-of-laws-with-honours-2/>. Site accessed on 8 Mar 2024. [18] HELP University. (n.d.) Bachelor of Laws (Hons). Retrieved from <https://university.help.edu.my/course/llb/>. Site accessed on 8 Mar 2024. [19] See footnote 9 above. [20] See footnote 10 above. [21] See footnote 11 above. [22] See footnote 12 above. [23] See footnote 13 above. [24] See footnote 14 above. [25] See footnote 15 above. [26] See footnote 16 above. [27] See footnote 17 above. [28] See footnote 18 above. [29] Rubin, A. (1988). What Appeals to the Court. Texas Law Review 67, 225, 225. [30] Kozinski, A. (1997). In Praise of Moot Court—Not! Columbia Law Review 97(1), 178, 181. [31] Carrigan, J. (1980). Some Nuts and Bolts of Appellate Advocacy. Litigation 6, 6. [32] See footnote 30 above, 184. [33] Marshall, T. (1968). The Federal Appeal. In Charpentier, A. (Ed.), Counsel on Appeal (p 139). p 146. [34] See footnote 30 above, 193.
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