What can be assessed in a moot?

Mooting, in its widest meaning, provides lots of opportunities for assessment beyond oral presentations. It has already been noted that there are different types of mooting (see FAQ 3), and obviously what can be assessed will differ according to which type is used.

If one thinks about what a moot involves it will be seen that there is a rich source for assessment. A typical moot will involve:

• initial preparation (including initial research)
• the production of a skeleton argument (which should be fully referenced and would, therefore, be suitable as a written element)
• production of a bundle
• preparation for a speech (ideally this should not be a speech written verbatim, but could involve cue cards or a skeleton structure)
• the actual speech
• judgment

The reader can, I am sure, consider a number of possibilities for assessment when reading this list.

An issue that is not expressly contained therein but which is undoubtedly central to mooting is the process of reflection. It is known that reflection is an important part of student learning, and the 2006 survey for the Mooting for learning project found that reflection after completing a moot was used by some institutions, in particular those operating a discrete mooting module. This is undoubtedly a useful task, and is well suited to mooting, where it is quite possible that a team will lose on the law but win the moot. The reflection can address issues such as the students’ substantive knowledge, whether the judge passed the right decision, what they could do to improve their performance and what they would do differently.

I operated a discrete mooting module within the curriculum and used a reflective diary as one of the principal modes of assessment. The student participants found the diary useful, as it led to them constantly critiquing their mooting experience and identifying ways of improving it. It also assisted them in understanding how to prepare work in other subjects, as they began to understand the importance of preparation and the need to be critical.

As has been noted already, skeleton arguments can be an extremely useful way of obtaining a written submission. Indeed, in some institutions the moot itself is only a small part of the assessment regime (typically 10%), whereas the skeleton argument counts for the greater part of the assessment regime. Whist this may be an understandable reaction, it is important that summative assessments are appropriate to both staff and students. The difficulty with an assessment that counts for 10% is that it does not differentiate particularly well between first class and third class marks. Someone who scores 70% in the moot will have seven marks overall, whilst someone who scores 40% in the moot will receive four marks. This means there is only a three mark difference in the actual assessment score they receive, yet the degree of skill and effort put in by the student awarded the first class mark is likely to be considerable. It could be questioned whether this is fair to the students who put in the time and effort to perform well in a moot.

Assessing the bundle (as a component part of a wider assessment of mooting) can be a useful way of getting students to think about their bundles of evidence. Here they use much more than just the skills of preparation – they are also provided with an opportunity to demonstrate their substantive knowledge through their choice of authorities. Requiring students to paginate the bundle and highlight appropriate passages also allows additional factors, such as understanding and application of stare decisis, to be considered.

Obviously the issue that is most typically assessed in respect of a moot is the actual moot itself. When marking the moot care must be taken that both staff and students are aware of what is being marked. Is it their understanding of the substantive law or their skill in mooting? If, as is more likely, it is a combination of both, what is the respective balance? Do the students know how they are going to be marked? And so on. Obviously the exact balance will depend on many factors, including whether it is a substantive or skills assessment or module, but it is important that there is clarity in the marking. It will be remembered that possible discrepancy in marking was considered to be one of the disadvantages of mooting (see FAQ 2) – some solutions to this will be considered in FAQ 11).

Last Modified: 4 June 2010