Why mooting?

Perhaps the most important step in deciding whether to use mooting in the curriculum is to ask yourself why? Mooting is commonly considered to be a fun activity enjoyed by (at least) some students and members of academic staff. Óne of the most significant findings of the 2006 survey for the Mooting for learning project was that 93% of responding institutions mooted in some form, confirming that it is an important part of law school life.

Mooting does not, of course, have to take place within the curriculum, and the survey noted that 38% of institutions continue to operate mooting purely in an extra-curricular manner. In other words 55% of institutions now operate mooting within the curriculum, something which is a significant change from ten years previously where the figure was 20%. It would seem beyond doubt, therefore, that there is a shift towards the inclusion of mooting within the curriculum, but this, by itself, cannot justify its inclusion.

Mooting undoubtedly brings some benefits (see FAQ 2), but is it necessary for it to take place within the curriculum for these to be realised? Some law schools remain determined not to introduce mooting within the curriculum, because they believe its benefits are best experienced outwith the classroom, and some universities reach the final stages of national and international mooting competitions without mooting ever featuring within the curriculum. Indeed, some argue that it is because it is extra-curricular that this achievement occurs.

There are, however, reasons why using mooting within the curriculum could be advantageous. It is a form of active learning (Gillespie, 2007), with some arguing that it is a form of experiential learning (Burridge, 2002). We know that some argue that learning is at its best when it is “active, enjoyable, reflecting and challenging” (Light and & Cox, 2001), and we are increasingly being persuaded to become more creative in both our learning and assessment strategies (Cropley, 2001). Mooting, as an enjoyable activity, can meet all these needs and has successfully been employed within the law curriculum.

This returns us to the question: why do you want to use mooting? There are many different ways of introducing creativity and active learning within the curriculum. A common problem when mooting is considered is that there is a misconception as to what mooting actually is. When considering using a moot it is suggested that careful thought be given to differentiating between a presentation, a debate and a moot.

Presentations

Presentations are now a familiar part of many universities’ assessment strategies. They are also commonly employed as a learning tool, where workshops, tutorials or seminars require students either singularly or collectively to make a presentation. There are undoubted benefits in the use of presentations, but is a moot just another form of presentation?

The 2006 survey noted that a significant proportion of intra-curricula mooting takes place within level 1 skills modules (see FAQ 5). When some of these modules were examined in more depth, including discussing the activity with relevant module staff, it became clear that what was happening was not a moot but a presentation.

Presentations can take a variety of forms, including, most obviously, individual and group presentations. It is also possible for a linked presentation to occur – ie a series of individual presentations linked by a common theme. If a ‘moot’ involves four students preparing an individual submission without any judicial interruptions, argument from counsel and invariably read from a script, then can this really be said to be a moot? A moot is more than preparing an argument in respect of a problem – it is a reasoned argument submitted to an appellate court, where the judge/s challenge the submissions made. Where it is four presentations on the theme of the same hypothetical problem then it is submitted that this is realistically a presentation and not a moot.

This may seem like semantics, but calling this a moot on a learning, teaching and assessment strategy could be problematic and is arguably deceptive to the student, who gains a false impression of what a moot is. A student prepares for a moot and a presentation completely differently, and a student who enters a mooting competition on the strength of a presentation could be in for a rude awakening. It is also demotivating to the staff called upon to mark these ‘moots’. They invariably understand what mooting is, and linked presentations will not meet their expectations, meaning that marks may suffer. A very good presentation can be a poor moot. Are students properly trained at this stage what a moot is? There appeared little evidence of this from the survey, with most modules at this stage either showing a pre-recorded moot or explaining the basics of a moot before letting the student getting on with it. Worse still, many staff presented the moot as a presentation, causing real difficulties with the assessment.

Linked thematic presentations can be a valuable form of assessment, particularly in the first year of a law degree programme, however it is disingenuous to call this a moot. If you simply wish a student to be able to present a reasoned solution to a hypothetical problem from a partisan standpoint then why pretend that this is anything other than a presentation? The students will get no less enjoyment or put any less effort in because it is called a presentation rather than a moot.

Debates

Debating has a long history in education, its use dating back probably to before even mooting. In law, however, we rarely use debates, and it is reasonably exceptional for debates to take place within the curriculum. Some have suggested that a moot is, in essence, a debate (Broadbent, 2001), but it is submitted that this is based on a false premise.

A debate is certainly a significantly different beast from a presentation. Someone who merely presents information would find themselves in trouble during a debate. Thinking on one’s feet is a key skill in debating, with the requirement of responding to the arguments put forward by the opposing side, however a debate also has some differences to a moot. A debate will normally argue a proposition rather than put forward a solution to a problem. Whilst, of course, it would be possible to change this, the premise of a debate is perhaps not well suited to a problem, and the difference between a moot and a debate is perhaps analogous to that between a discursive essay and a written problem. Also, a debate will ordinarily not have restrictions as to sources. It will be seen that this can be a criticism of mooting, although one that can be creatively solved (see FAQ 8). Similarly, therefore, a debate could have restrictions on sources, but even then it is unlikely to have the same structure as a moot – a debate is, quite rightly, more free flowing and involves teams.

Debating is a valuable exercise and one that does not feature heavily in undergraduate law curricula. Whilst it would be possible to tailor a debate to resemble a moot, the question is why one would wish to do so. Debating should happen in its ordinary form, and tutors who wish to use mooting should think carefully about what it is that they wish the student to do. It may be that the actual purpose of the exercise would be met by a debate rather than a moot.

Moots

It is submitted that a moot is more than just a presentation of the facts or a debate on the issues – it is a formulaic solution to a problem. The moot requires students not just to perform but to be advocates. Advocacy means much more than simply presenting (Fox & Bell, 1999), and it is this combination of problem solving skills, the application of legal rules and advocacy which is unique about mooting.

Moots undoubtedly are time consuming, although the time can be reduced depending on what form is used (see FAQ 3). Academics should think carefully about whether a moot is necessarily appropriate for what they seek to achieve, or whether a presentation or debate would be more suited.

Last Modified: 4 June 2010