Practice makes perfect: use of practitioner led mooting to develop and enhanced student centred learning experience

Presentation at Vocational Teachers Forum IV, 8 January 2005

In his paper at the fourth Vocational Teachers Forum Dan gave guidelines for the involvement of practitioners in mooting. Dan would like to acknowledge the invaluable help of David Pope, Director of Advocacy at Denton Wilde Sapte, for his help in establishing and running the College of Law mooting competition.

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Mooting is a valuable tool for students’ learning of the law. Practitioners can enhance students’ mooting experience by giving masterclasses on mooting skills and judging moots. Practitioner input should be managed to ensure students achieve the appropriate learning outcomes. This can be done by ensuring that the educational institution, in discussion with the relevant practitioners, sets the masterclass at an appropriate level and provides suitable guidelines on intervention and giving feedback for practitioners judging moots.

The history of mooting

Mooting is arguably the original form of legal education. It was used in the 15th century by the Inns of Court as a means of training lawyers in the rigours of pleading, and, in concept if not in name, has its origins in Aristotle’s On rhetoric. Here Aristotle defines rhetoric as the “ability in each particular case to see the available means of persuasion”. He then goes on to specifically consider judicial rhetoric and the need for an understanding of the role of character and emotion when arguing the law before judge or jury.

The author would argue that notwithstanding (or perhaps because of) this longevity mooting remains one of the most effective ways of teaching students the law, both in terms of knowledge of black letter law, which is typically the focus of undergraduate and GDL programmes, and of the practical skill of arguing points of law, typically the focus of vocational courses.

Mooting’s contribution to student centred learning

Let us focus first on what mooting can contribute to learning the law. All those who teach at undergraduate or GDL level will have encountered the challenge of trying to persuade students to read a case in full with a view to learning how to express its ratio. Student reluctance to do this is understandable in view of the intensive nature of undergraduate and GDL programmes, and is reinforced by the fact that, for so long as students are being asked to prepare written answers to problem questions for submission to a tutor, there is no obvious need to look further than a law reporter’s head note or a text book or case book writer’s summary for one’s knowledge of a case. Put quite simply, if students don’t read cases, this is at least partly the fault of educational institutions for not setting tasks which cannot be accomplished otherwise than by the detailed reading of cases.

This is where mooting can assist. Contrast, if you will, the following two scenarios:

Students are set a simple problem question in the law of contract with the stated outcome that they should be able to explain and present reasoned arguments as to the difference between an offer and an invitation to treat, and told to prepare a written answer, which they should bring with them to the seminar for further discussion.
Students are given exactly the same facts but set out in the form of a moot problem and told to prepare a skeleton argument on behalf of either the applicant or the respondent and come to the moot with their designated authorities (up to a maximum of three per side) and present their client’s case to a moot court.

Scenario 2 is likely to result in a far higher success rate in terms of the number of students who read and analyse the relevant case law. There are a number of reasons for this:

• a moot is a higher risk environment compared to a standard workshop in terms of how exposed students will feel unless they have done the necessary preparation, and students will therefore feel a greater incentive to prepare
• mooting gives the tutor, in the role of the judge, far greater freedom to test a student’s reading and understanding of a case by making sensible and controlled judicial intervention
• the true test of one’s own understanding of a concept is one’s ability to explain it to others, and so preparing fully for a moot requires students to reflect as to whether they have properly understood a concept or not

Mooting also encourages a reflective approach to learning – students receive feedback throughout the course of a moot on which, in order to progress, they will be required to reflect.

In all but the best resourced of institutions it would not be possible to replace an entire module based on scenario 1 with scenario 2, as moots, although quite achievable with a whole class of students, work much better on a 2 v 2 basis. (The author is only aware of two institutions in the UK which have an entire module taught by way of mooting.) Moots are therefore most useful as an extracurricular complement to a standard module, such as the law of contract in the above example.

Careful consideration must be given to the two key elements of student preparation and judging/feeding back on student performance. It is the author’s contention that to ensure students gain the most from mooting, while both of the above can be done by academic staff, there is much to be gained for involving legal practitioners, in the form of solicitors, barristers and judges. Practitioners can bring something extra to the mooting party in all of the following respects.

Reasons to involve practitioners in mooting

Practitioners, particularly those who are recently qualified, set a benchmark standard that students may aspire to achieve, and as such provide an incentive for student learning. Students tend to always see a tutor as a tutor, and can therefore find it difficult to respond to a tutor as a ‘judge’, in the sense of someone who needs to be persuaded rather than simply answered! In giving feedback practitioners, irrespective of whether they are professional judges or not, can far more easily provide contemporaneous examples from practice along the lines of: “the reason why it is important to state your submission clearly is because in practice a judge will have a finite amount of time to hear you and will not make the argument for you”, or, more bluntly but equally valuably, (and based, I assure you, on a real life example): “I used to think that reading a relevant passage from a case to a judge was effective advocacy until Judge X told me in no uncertain terms he was perfectly able and content to read it for himself!”

Now that we are hopefully satisfied as to why we need to involve practitioners in our mooting programme, we need to look at who to involve and how to manage the process.

Considerations when choosing what type of practitioner to involve

This may seem like a redundant question (and in many cases the answer may be anyone who is prepared to give up their time), but it does bear some thinking about, as different types of practitioners bring different skillsets with them. The most obvious distinctions to consider are advocate vs judge, civil vs criminal advocate, and junior vs senior advocate. Criminal advocates spend the majority of their working life on their feet in court, and by virtue of this and the (to stereotype slightly but in the author’s view not unfairly) ‘blood and guts’ nature of their practice, will generally have a plethora of interesting courtroom war stories and tips for examination of witnesses. Civil advocates, by contrast, although undoubtedly less experienced in the art of examination of witnesses, will often have more experience in drafting skeleton arguments and making submissions on the law, both of which are key mooting skills, whereas the examination of witnesses, although interesting by way of analogy, is not. Senior advocates bring gravitas and experience to both student presentations and judging. Junior advocates bring a closer reference point to which students and aspiring advocates can both relate and aspire and, to the extent that slightly different styles of advocacy work better in different courts (such as county court vs high court), are more likely to appear more regularly in the types of court where students will begin their advocacy careers. Real practising judges are clearly the best people to give definitive guidance on what persuades them or otherwise. The forte of the practising advocate is in guiding students in precisely how to prepare their case and in preparing students for the different styles of judging they are likely to encounter in practice, and how to cut their cloth accordingly when making submissions.

Why should practitioners contribute to mooting?

On a passing note and to hopefully reassure those educationalists who may be somewhat daunted by the prospect of asking busy practitioners to come in and give up their time to talk to students, I would like to briefly address, to the extent I am qualified to do so, what motivates practitioners to become involved in student mooting. The overwhelming impression I have received from working with a range of practitioners is that they really do want to give something back to mooting, as the activity which in the vast majority of cases gave them the opportunity to take their first steps as advocates. Additionally, most practices, whether barristers chambers or solicitors firms, are concerned effectively to market themselves to students with a view to optimising their own recruitment. Involvement in mooting enables a practice to put itself and its personnel across in a more focused and interactive fashion than at a purely marketing event. Finally, practitioners have repeatedly made the point to me that seeing and assessing others perform has made them re-evaluate in certain respects how they do advocacy.

As to management, this is necessary because first and foremost if, as we have already concluded it is, mooting is an educational process for the students, then what practitioners say must work from an educational point of view in the sense of being at an appropriate level and allowing students to achieve the stated outcomes for that particular session. Additionally, most practitioners in the author’s experience appreciate professional guidance in terms of what would work best and how their involvement fits in with what else the students are doing. There is a potential tension, which needs to be sensitively resolved, between ensuring the session meets your requirements educationally and not stifling the individuality (let alone the goodwill) of the relevant practitioner by imposing a rigid and overly dictatorial framework.

Practitioner masterclasses

So what does work best? In terms of developing students’ mooting skills I would suggest a two stage approach. Firstly, an introductory talk as to what mooting involves and why students should participate. This provides an excellent opportunity for a junior practitioner to give an account of their own mooting experience and more specifically what they gained from it. In many cases, if they either sit on interviewing panels themselves or know others in the organisation that do, they may also be able to speak as to how mooting can assist the student during the training contract or pupillage interviewing process. To round off I would suggest a straightforward interactive exercise, which gives students both a flavour of what mooting involves together with some guidance and feedback on the basic skills required. Distribute to the students the first two pages of a case report (in the past I have used White v Jones [1995]2WLR207 but I have no doubt there are other cases which would work equally well). The students should then be told that they have ten minutes to read the case and make any necessary notes and that they will then be invited to stand up and explain the facts of the case to the judge taking no more than one minute. They should be told to address the judge as if they were a Lord or Lady Justice of Appeal, as moot judges are, and that it is possible the judge may question them.

It should be emphasised to the students in setting up the exercise that its significance is that both in practice and in mooting a judge may not be familiar with a particular authority and will therefore ask the advocate for a summary of the salient facts, and that the outcomes of the exercise are that they select those case facts which are relevant and experience (in many cases quite possibly for the first time) the potentially unnerving experience of listening to the sound of one’s own voice when making submissions. At the end of the preparation time a volunteer will then be sought to make submission, after which the practitioner/judge will give brief feedback incorporating the principles discussed below. Time permitting further students can then be invited to submit and receive feedback.

The second stage of the educational programme, which will ideally take place once the students have participated in one or two moots, will be a practitioner led mooting masterclass. The aim of the masterclass in general is to give the students practical assistance in developing one or two higher level mooting skills and to thereby reinforce their interest in and enthusiasm for the mooting process. I set out and develop below some ideas for a masterclass on the use of skeleton arguments and authorities, as these are two related areas where students, particularly in the early days of their mooting, can struggle to make an impact. Additionally, these are two areas where practitioners can add very real value.

Masterclass on the use of skeleton arguments and authorities
By way of preparation the students were given a straightforward moot problem where the appellant was appealing to the Court of Appeal against a finding that he could be liable for advice given to the respondent for advice given in a social context. They were also provided with two short skeleton arguments on the appeal (one on behalf of each party). The students were asked to read the report of Chaudhry v Prabhakar (¹⁹⁸⁸3AllER718), excluding the judgment of Lord Justice May (as much of this is dubitante). The students were asked to analyse the problem, skeletons and authority in advance of the masterclass and to prepare a one minute submission on behalf of either the applicant or the respondent to the practitioner acting as a judge of the Court of Appeal, making reference to one of the skeletons and the authority.

During the masterclass students were invited to make the submission they had prepared in advance. It was at the practitioner’s discretion whether to intervene or not, but interventions were made to ask the advocate to clarify the submission or to comment on how far the submission could be taken or to take the advocate who has placed reliance on one passage on the authority to a less helpful passage. If advocates are consistently making the same error, for example not presenting an authority properly, then the practitioner may care to give a short demonstration. By the same token if the advocate has struggled to deal with a judicial intervention, then ideally the practitioner will suggest a strategy for dealing with this better.

Guidelines for practitioners as judges

This leads us neatly on to the topics of how to regulate judicial intervention and to the giving of judicial feedback. Judicial intervention is in the view of most mooters and judges I have spoken to by far the most challenging aspect of the mooting process, as it requires the advocate to think on his/her feet and to depart from their notes. Often when I have judged moots the mooters could only really be separated by the way in which they handled judicial intervention. Practitioners and judges will tend to intervene as much out of instinct as anything else, but for students to gain the most from the intervention I would offer the following basic guidelines:

Guidelines for regulation of judicial intervention

• make sure the intervention tests the submission made and not the mooter’s wider understanding of the law in that area. For example, “if you take that submission to its logical conclusion doesn’t it mean x?” is a fairer submission than: “do you know of any other (ie not cited in the moot) cases in this area?”.
• think in terms of a maximum of three significant interventions per mooter. In my experience it takes an average of three minutes for a mooter to address an intervention to the judge’s satisfaction – more than this risks pushing the total time taken for the moot beyond the one and a half hour mark.
• if a mooter is floundering it is generally more helpful to move them on, for example by saying something along the lines of: “I am unlikely to be persuaded. I suggest we move on to the next point on your skeleton argument”, rather than waste time and risk destroying their confidence by taking the point any further. They may well be able to restore their confidence by dealing effectively with the next intervention, and the judge can then suggest in feedback how they might have dealt better with that intervention.

Guidelines for giving feedback

• try to begin by giving an example of something the mooter did well and why it was effective. For example, “I liked the way you referred to your skeleton argument as I always knew where you were in your submissions”.
• when dealing with negative feedback (ie areas for improvement) try to give the mooter an example, in as much detail as possible, of the point in question, as this helps to reinforce the point. This can often be achieved by reading back verbatim to the student the relevant submission.
• once you have identified the problem, try to always make a suggestion as to how the mooter could improve in that area. For example, “you became confused as to how to address the judges – you might try writing out the appropriate term in bold on your version of the skeleton argument”.
• try to restrict yourself to a short number of points (generally no more than three) and when selecting which points to feed back on think of those areas which will make the greatest difference to the overall standard of performance

Last Modified: 4 June 2010