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WHY DO WE MOOT? EXPLORING THE ROLE OF MOOTING IN LEGAL
EDUCATION
ANDREW LYNCH*
INTRODUCTION
One of the most specialised pieces of assessment
featured in a law degree is the moot. Most Law Schools have a mooting component
in
some form and at some level, yet given the sparseness of the literature on
this topic, it seems that the presence and use of mooting
is rarely called into
question. The only apparent reasons for the existence of mooting programmes are
tradition and the correlation
to the realities of professional practice. But is
this enough?
The overall purpose of this article is to provide valid
educational and practical justifications for the exercise of mooting. This
process begins by defining the essential characteristics of mooting, as it has
existed over the centuries. This discussion will be
given contemporary relevance
by an examination of how three Queensland Law Schools currently feature moots in
their undergraduate
curriculum.
The three theoretical bases for mooting as a
means of learning, which the paper explores are constructivism, experiential
learning
and problem-based learning. As such, mooting has a clear role to play
in a law curriculum informed by such educational perspectives.
There is also a
general discussion on the place of moots in the student approaches to learning
(SAL) framework.
Additionally, the paper seeks to reveal student reactions
to mooting through qualitative research. It is not particularly beneficial
to
place moots in a theoretical context if there is little understanding of their
practical effect. The data gathered from the focus
group interviews conducted
for this study supports many of the propositions made in the earlier section of
the paper, where moots
are viewed from the perspective of educational theory.
The final part of the paper seeks to take all of the above and make a
statement about the value of moots as a form of assessment in
the law
curriculum. The purposes of assessment are discussed in conjunction with the
theoretical views of mooting examined earlier
in the paper, as well as the
practical outcomes of mooting identified in the group interviews. The conclusion
is reached that there
are excellent practical and theoretical justifications for
moots and by appreciating these reasons, law teachers can begin to better
understand the strengths and benefits of this assessment tool.
PART A: MOOTS IN PRACTICE
The Development and Characteristics of Mooting
An obvious starting place is to attempt to define exactly the features of
mooting. Any discussion of the educational merit of the
practice cannot be
meaningfully conducted without clarifying what is involved when we moot.
In
engaging in this defining process, it is instructive to refer to the history of
mooting. The practice of mooting is buried in early
legal history. It is
extremely difficult to pinpoint precisely when the practice came into usage, but
the genesis of moots can be
traced back to the establishment of the Inns of
Court of medieval times. Young men2 residing at the
Inns as apprentices took instruction from their seniors and were required to
perform in moots over several years
before they could be admitted as
practitioners. Moots were one of the few formal features of the legal education
of the time.3 There was “no prescribed
attendance, no lectures and no regular course of study, a student being simply
obliged to eat three
dinners ... in the Hall of the Inn, in each of the four
terms”4 for a number of years. The required
attendance at meals was important as discussions of cases were held after
dinner, and moots were
conducted following supper.5
The section on barristers in Halsbury’s Laws of England
outlines the respective roles of the Inns members in moots. That they were the
key component of early legal education
is demonstrated by the following
passages:
The senior members of the society formed the bench ... ; the persons who argued at the bar of the Inn ... were called ... utter barristers, because they sat “uttermost” on the forms which constituted the bar... The members of the Inn who took part in these exercises and sat inside on the same form and merely recited the pleadings were [called] inner barristers, and were afterwards called students.
No member of an Inn of Court could have a chamber in his Inn, or be in commons, unless he kept moots6 within three years after his admission. After being “usually in commons”, and “keeping the case” in hall, and performing satisfactorily in a number of moots in the house to which he belonged, and in one of the Inns of Chancery, the member, when of seven years’ standing from admission, could be called to the utter Bar. After being so called he could not continue to keep his rank of utter barrister unless for three years after his call he participated in ordinary mootings and other ordinary exercises of learning ...7
This extract is illuminating for two reasons.
Firstly, it shows how important moots were in educating the early
practitioners8 before formalised university
accreditation9 Mooting features at all stages of the
apprentice’s progression through his education and is the condition
attached to that
continued progression. Secondly, although the emphasis on
mooting has clearly been reduced by the emergence of Law Schools, with
their use
of other forms of assessment, it seems that the practice has remained largely
unaltered from this early model. Certainly
the devices of the inner and utter
bar have long been forgotten, but the essence of students presenting legal
argument to a specially
constituted bench of their superiors as part of their
education is the same.
Today moots are still seen as asking “students
to argue points of law before a simulated
court”.10 Many moot programs seem to follow the
general pattern described so intricately by Gaubatz11
of requiring students to prepare and submit briefs, and deliver their case to a
“fake” bench, which is always ready to
interrupt with questions.
This is confirmed by the current practice of mooting in today’s Law
Schools.
In summary, it seems that there are three key features of mooting
which have remained from the Inns of Court and continue in practice
today:
These are the bare essentials of a moot. Of course, as evidenced by
the survey of Queensland Law Schools, many programs operate on
a much more
sophisticated level than this and may require briefs to be submitted and other
students to take the part of instructing
solicitors. The exercise may occur in a
real court, a moot court room or a classroom. It may be videotaped or it may
not. These are
all variants on the common theme, which is comprised of the
stated elements above. They can enhance the experience for both students
and
assessors, but they do not alter the basic requirements of the exercise.
Le
Brun and Johnstone distinguish moots from mock trials by stating that the latter
seek to recreate the whole court experience, including
witnesses and even
juries.12 The distinction is a valid one and it should
be noted that a moot does not involve the full trappings and features of a
trial.13
It should also be noted that the term
“moot” is often used to refer to activities which are conducted in a
fairly relaxed
manner in the classroom.14 Commonly this
involves allocating the various roles of counsel and judge to students and
having them argue the points of law during
the class. Whilst this is clearly
related to what occurred centuries ago at the Inns of Court, it differs from
moots “proper”
in that in most cases preparation time is extremely
limited and much of the formality (and presumably the consequent student
anxiety)
is dispensed with. The varying degrees of formality in mooting are not
of crucial significance to this paper. While most of the discussion
relates to
the context of formal assessable mooting, the comments and analysis of the
practice of mooting and its advantages as an
educational tool and item of
assessment will apply generally.
Current Use of Mooting in Three Queensland Law Schools15
There are a variety of ways in which mooting can
feature in an undergraduate law course. What this says about our understanding
of
moots is unclear, given that there are reasons other than educational ones
which determine the structure of a curriculum. At the
time of writing, all five
Law Schools in Queensland have a mooting component though the amount of mooting
and the stages of the curriculum
at which it occurs differ greatly.
This
section of the paper will examine the approach taken by three of the Queensland
Law Schools — those of Griffith University
(Griffith), the Queensland
University of Technology (QUT) and the University of Queensland (UQ). It should
be stressed that the purpose
of this exercise is not to display a preference for
one institution’s approach over another. These three universities have
been chosen solely because of the contrast which they demonstrate. Their
approach to mooting is determined by their own characteristics
and objectives
and the author does not seek to judge them by an external standard.
Griffith
has compulsory moots in a number of subjects so that by the conclusion of fourth
year, all students have performed at least
five moots. Students are introduced
to mooting in Week 13 of first semester in the first year subject Law and Legal
Obligations,
where they moot in teams of two, each speaker being allotted five
minutes presentation time. This brief and informal introduction
to mooting is
built upon steadily over the next four years, with mooting time becoming longer
and the pre-moot preparation more complex.
There is no obligation for there to
be a moot in every year and the structure of the moots is largely determined by
the convenor
of the subject in which it is featured. As a consequence, the moots
are of varying formality and may require different things of
the mooters
depending on the individual convenor’s approach.
By contrast, QUT
moots are offered as an optional form of assessment in selected specific
subjects in each year of the curriculum.
This places restrictions on the number
of students who may actually have the chance to moot in a year. The impact of
this restriction
is heightened by the greater numbers of students enrolled at
QUT — presumably the reason why compulsory moots are not regarded
as a
feasible option.
The mooting process, once entered into, is highly
structured and formalised. Regardless of the stage of the degree course at which
the students moot, all mooters must comply with a single set of prescribed
standards and rules which are published in the Faculty’s
Moot Guide. In
addition to providing students with the assessment criteria, outlining the
responsibilities of those acting as solicitors
or barristers, legal research
advice, and references for preparatory readings, the Moot Guide specifies the
procedures which must
be followed precisely by the mooters. This involves naming
the times by which written submissions and lists of authorities must be
presented, and a number of other steps which are set out in a “Schedule of
Preliminary Steps for Mooters”. Most moots
are held at the Queensland Law
Courts complex and the relevant academic is joined on the Bench by practising
members of the profession,
if not the judiciary.16
The UQ approach is different again. Unlike the previous two examples, moots
at UQ are not attached to any specific subjects but rather
are featured in
particular advocacy subjects, which prepare students for, and then engage them
in, mooting. These subjects are compulsory,
with students being required to do
two moots for their Bachelor of Laws degree in third and fourth year. These
moots are conducted
formally in the UQ moot court room in the presence of senior
members of the legal profession. The cornerstone of the UQ programme
is that if
mooting is to replicate the realities of practice, then it should not deal with
a fact scenario confined to a discrete
legal area.17
This is a feature which can be contrasted with both Griffith and QUT. The
emphasis is significantly different at UQ where the experience
aims to develop
students’ research and advocacy skills, but is not seen as a means for
students to learn a specific area of
the substantive law. The UQ moots are
devised on the basis of the interconnectedness of the many subjects which make
up the degree,
but at the other two universities they are seen as a tool for
assessing distinct areas of the law.
From examining just three Law Schools
of the many which now exist in Australia, it can be seen that there are several
ways of approaching
the incorporation of mooting in an undergraduate degree.
However, it should be realised that it is not possible to criticise a law
curriculum solely on the number of opportunities for mooting it gives students.
Mooting involves a vast amount of administrative
co-ordination18 as well as actual time spent assessing
each individual student’s oral (and, in some instances, written)
submission and performance.
In fact, mooting is perhaps the most time consuming
activity which a legal academic can feature in a course and so the practical
possibility of holding moots is limited more than is the case with most other
forms of assessment, and is largely determined by staffing
resources and student
numbers. However, it is the view of the author that by examining the kind of
learning which mooting seeks to
(and actually does) foster, we may arrive at a
clearer understanding of the role of mooting in the undergraduate law degree.
PART B: MOOTS AND EDUCATIONAL THEORY
Moots and the Theories of Learning
Moots involve students in many tasks and are a form of assessment which
combines both substantive law and a range of skills.19
There are a variety of specific educational perspectives from which moots can be
viewed. However, as a preliminary point, it is worthwhile
to consider theories
of student approaches to learning (SAL). It seems that moots are an extremely
good example of assessment which
involves a “multidimensional”
approach by students.
Biggs20 identifies the two
meanings of the term “approaches to learning”. The first
concentrates on the strategies21 and processes which
students adopt and which “directly determines the outcome of
learning” ie. a cognitive perspective.
The second meaning focuses upon
students’ “predispositions to adopt particular processes”.
This view is concerned
more with what Bloom labelled the affective
domain.22 Therefore, in essence, students’
approaches to learning can be viewed as motives (affective) and related
strategies (cognitive):
Approaches in the SAL (student approaches to learning) framework, then, are multidimensional. They comprise several aspects in both motive and strategy components, and are only meaningful in context, being related to student intentions and to the existential teaching/learning context on the one hand, and to the quality of the learning outcome on the other.23
This view is in accord with that taken by Ramsden, explaining the work of Marton, when he wrote that there were two aspects to a student’s approach to learning — the How (or structural) aspect and the What (or meaning) aspect.24 The What aspect is concerned with students’ motivations and affective responses, whilst the How aspect focuses on organisation and planning. However, he also concludes that:
[i]n practice, these two aspects of approaches are fused together. In order to understand, a student must integrate and organise and see the text or other learning task as a whole. It makes no sense to talk about the meaning attributed to something unless one also talks about how the meaning is constituted. On the other hand, how a student structures a task cannot be considered in isolation from what he or she is intending to structure.25
Moots reflect this “equilibrium between
cognitive and affective factors”.26 The
replication of the adversarial system requires each side to formulate a plan of
attack or strategy. This is consciously done
and will involve predicting
arguments of the opponents and how they may be
countered.27 Additionally the topic must be defined,
researched, and then often divided between team members.
Thus the SAL
framework also includes both motivational and affective aspects of
students’ learning. The exact nature of students’
affective
responses to mooting will be explored later using the qualitative data, but it
should be noted at this stage, that it is
strong — probably stronger than
is the case with many other pieces of assessment in legal education. This is due
primarily
to the extreme feelings of confidence and fear which mooting engenders
and which “will influence both their [students’]
beliefs about the
value of strategies and their strategy
selection”28 at the planning stage.
It is
acknowledged that most things we experience — through formal education or
otherwise, involve a combination of pure thought
impacting with personal
characteristics. However, moots are a perfect example of assessment in law which
involves high degrees of
cognition and metacognition in an affectively charged
context. Students are thus expected to cope and respond on a variety of levels.
The above is an extremely general overview of the theory behind
students’ approaches to learning. Many of the concepts raised
then and in
the remainder of this section of the paper will be further explored in reference
to the qualitative research. They are
concepts which underlie the three ensuing
perspectives from which moots may be viewed. These may not be the only
perspectives, however,
they do integrate well with each other to provide a clear
picture of moots as a form of learning which may be constructivist, experiential
and problem-based.
Constructivism
Constructivism is a very broad theory of learning
which underlies many varied educational perspectives29
— including those of experiential learning and problem-based learning. The
theory is simple in that it merely proposes that
the learner is the prime focus
of the educational experience and s/he constructs their own knowledge. The
teacher is not an omnipotent
being capable of transferring knowledge to the
student.30 The constructivist view owes much to the
work of Säljö31 who identified six different
conceptions of learning, the fourth and fifth of which are, respectively,
learning as the abstraction
of meaning and learning as an interpretative process
aimed at understanding reality.
That these conceptions form the basis of a
constructivist view of learning is apparent when Säljö states that
they emphasise
an “assumption that knowledge is construed by individuals
as a result of an active effort on the part of the learner to abstract
meaning
from a discourse and also to relate this meaning to an outside
reality.”32
From the author’s
observations and experiences, as well as the responses of the twenty people
interviewed, it is impossible
to moot successfully without interpreting and
abstracting meaning from the vast amounts of case and statute law (let alone
academic
writings) relevant to the moot problem. Moots involve memorisation and
the retention of knowledge, but first the mooters must construct
that knowledge
from the materials they will discover through their research.
A point that
needs to be made here is a reminder that the type of moot being envisaged is one
which does not substantially involve
students reviewing material they have
gleaned elsewhere, be it lectures or set readings. Of course, moots may be
revisionary in nature,
depending on the objectives of the examiner, yet often
they expose students to areas with which they are unfamiliar, or at least
require a much deeper understanding than was necessary when the students were
first introduced to the material. It is moots which
share the latter feature
that this discussion is relevant to.
Resnick, in discussing her view of
“current cognitive theory” emphasises a constructivist approach:
First, there is a process of knowledge construction, not of knowledge recording or absorption. Second, learning is knowledge-dependent; people use current knowledge to construct new knowledge. Third, learning is highly tuned to the situation in which it takes place.33
These three characteristics of constructivism are all present in the case of moots. The third point which Resnick makes requires further explanation which the preceding two do not. Situated learning is often proposed as a means of overcoming the all too common phenomenon of students who “can describe and discuss various rules of law but are unable to apply this knowledge in a different context, particularly in a practical sense”.34 Brown et al advocate engaging students in learning through the “ordinary practices of the culture”.35 There can be no more obvious example of this in legal education than mooting. Whilst advocacy is only one dimension of a lawyer’s existence, mooting can involve more “practices of the culture” than just oral court presentation. Legal research, formation of a case plan, writing of briefs, and, of course, problem solving, are all skills which are relevant to practice36 and are features of moots.
Experiential Learning and Problem-based Learning
Related to the notion that students construct their
knowledge, is the idea that they do so by reflecting upon their experiences in
a
manner illustrated clearly by Kolb’s Experiential
Cycle.37 The significantly reduced role of the teacher
indicates the constructivist nature of the learning which the student engages
in. There
is little imparting of knowledge from teacher to pupil, but rather the
student learns by a process of construction based upon experience
and
reflection.
It is clear that the “experience” from which
students learn may be varied in nature, and can range from the humble lecture
to
actual work experience.38 Obviously, the degree of
concreteness varies along this spectrum of possible experiences, however, the
next best thing after real
world experience are role plays — into which
category moots clearly fall.39
The relationship
between experiential learning and other more general educational theories is
well illustrated by the recent work
of Andresen, Boud and
Cohen40 who state that a key feature of experiential
learning is that it involves the “whole person — intellect, feelings
and
senses”, or in the terms used earlier in this paper, the cognitive and
affective domains operate together. It was stated that
this seemed to be a
strong feature of moots, and the reason for this would seem to be that it is a
key characteristic of experiential
learning. Additionally, Andresen et al
acknowledge that experiential learning “supports a more participative,
learner-centred
approach, which places an emphasis on personal experience, rich
learning events and the construction of meaning by
learners.41
This clearly relates to the discussion
of constructivism and the student’s role at the centre of his or her own
learning. By
engaging in the experiential learning cycle, students are working
within a framework to construct their own knowledge.
Another advantage of
mooting is that it is readily applicable to problem-based learning (or PBL).
Though this originated in reference
to the teaching of medicine, it has found
supporters in many disciplines, including law. In essence, Winsor explained PBL
when he
wrote:
this form of LEARNING (as distinct from TEACHING) is based on your tackling a problem, or series of problems, without prior instruction. The idea is to get you to indulge in what is described as ‘discovery learning’ by using your own initiative, but guided and assisted (rather than lectured or taught) by your instructor.42
In true
PBL the process is both the focus for the problem and the assessment. Cowdroy
comments on the suitability of this approach
when he states that it is
“particularly relevant where multiple alternative approaches and solutions
can be applied to a generic
problem, as is the case in advanced levels of
architectural, legal and medical education, where multiple approaches and
multiple
solutions can be acceptable, but where the way of thinking about
approaches and solutions is common.”43
It is
submitted that moots are a good example of a piece of assessment in legal
education where the importance of the process applied
in responding to the
problem is at least equal to, if not more than, the emphasis on the actual
solution reached. Mooters are not
marked solely upon the accuracy of the law
they argue in the moot court. Many of the arguments heard in moots are rather
desperate,
and the assessing academic knows this — has foreseen it in
fact, when she or he drafted the question. The true test is to see
how the
students use the authorities that do exist in support of their argument, how
they organise this material both individually
and as a team, how they research
the problem, and how they present it and respond to questions from the Bench.
Certainly students
are marked on their understanding of the law, but by the
nature of the exercise, they cannot all reach the correct solution. The
final
answer to the problem posed by the case really plays a very minor role in both
their learning experience and also the assessment
of their work.
The work of
Laurillard on discovery learning supports the view that students are more
excited about figuring out the law from scratch
and making the decisions as to
what law is relevant so that the product is much more a result of their own
reasoning and planning,
than work which is informed and shaped by the
teacher’s treatment of the area in class.44
Students are capable of adopting deep or surface learning approaches depending
on the nature of the task before them and what is
required to complete it
successfully.45 However, she recognises that discovery
learning, which is similar in many ways to PBL, “invites a deep approach
because it
makes the problem the student’s own
problem”.46 She makes it very clear that the key
to this form of student learning is a high level of motivation as a result of
students’
increased role in the process. This appreciation of PBL has
strong links with the general principles discussed above in regard to
student
approaches to learning. The quality of students’ learning will be improved
if we can motivate them by giving them more
control over
it.47
The traditional use of PBL in groups helps
students learn communication skills and the necessity of cooperation. It also
provides
students with a support system, which can give valuable
feedback.48 This advantage will be discussed in the
third part of this paper. Clearly moots do involve a high degree of group work
and peer learning
and evaluation.
In conclusion, it is submitted that moots
can fit easily within the PBL model and accord with the constructivist school of
thought.
Not only do they situate learning within a real-life practical
experience, but they do so by requiring students to construct their
knowledge
from a problem within that context. Whilst the strength of this approach depends
on the actual design of the moot program
involved, the clear potential exists,
and is made use of in many law schools, for moots to be a student-centred,
problem-based learning
experience.
Integration of the Theoretical Perspectives
In summary, this part of the paper has considered mooting from a number of educational viewpoints. It should be stressed that moots can reflect all of these theories at once. The examination of SAL literature is of general application to assessment items and is particularly apparent when students are mooting. The remainder of the theoretical section of the paper discussed constructivism as a broad school of thought and then focussed on two examples of it — experiential learning and PBL. Although these areas are often dealt with in isolation from each other for the purposes of analysis and discussion (as occurred here), in practice they may and often do, operate conjunctively. It is submitted that this is certainly the case with moots.
PART C: THE REALITY OF MOOTING FOR STUDENTS
This part of the paper seeks to move from the educationalist’s
perspective and examine the experiences of students. In order
to do this,
qualitative data was collected through a number of focus group interviews. As
the aim of the research was to have students
describe the “salient
behaviours, events, beliefs, attitudes, structures, and processes occurring in
this phenomenon”49 it was decided that the method
adopted should be designed to elicit qualitative responses. Quinn Patton favours
qualitative methods,
in preference to structured, statistical quantitative
research, because they “permit the evaluator to study selected issues
in
depth and detail. Approaching fieldwork without being constrained by
predetermined categories of analysis contributes to the depth,
openness and
detail of qualitative inquiry.”50
Tesch
explains the essential distinction between quantitative and qualitative research
as moving “away from numbers and back
to asking people questions and to
observing.”51 Consequently, in-depth interviews
are a long-recognised method in this kind of research, and the use of focus
group interviews is
well documented.52
The research
is phenomenographical in nature, in that the aim is to describe students’
experiences of mooting, rather than the
exercise of mooting per se. As the
founder of phenomenography stated: “we are not making statements about the
world as such,
but about people’s thoughts about
it.”53
Tesch describes phenomenography as
research which seeks to discover patterns in people’s conceptualization of
a phenomenon which
they experience.54 By engaging in
this form of research we can construct a clearer picture of the effect of
mooting on our students.
Four groups of five students each were interviewed
for this study. All participants are students enrolled in Law at Griffith
University
and were invited to participate so as to form groups containing
students with a range of different marks for their moot work. Two
groups were
comprised of first year students, with third year students making up the other
groups. This was done to determine whether
there was consistency in the data
gathered despite the differing levels of experience of the students.
Additionally, the students
were segregated on the basis of their gender. This is
an approach which Russell recommends in the formation of synergetic focus
groups55 on the basis that men and women behave
differently in single sex groups than they do in mixed
company.56 Regardless, several of the students
interviewed stated that they felt more comfortable in groups of their own sex
and the results
of the research did not differ markedly between groups, but the
way the different sexes approached the questions did, with the female
participants being much more direct and open in discussing the emotions a mooter
experiences.
The interviews were of roughly 45 minutes duration each. The
planned questions were as few as possible so that the interviewees controlled
the direction of the discussion. They were the following:
The researcher only asked questions additional to
the ones above in order to clarify a point or to ask students if there were any
other features they could identify, if they began to lose sight of the initial
question.
The tapes of the four group interviews were typed by an
independent third party and it was these transcripts which were analysed by
the
researcher. Phenomenographical analysis involves the researcher examining the
data and selecting quotes which are illustrative
in some way Groups of like
quotes from across all the transcripts are formed and “eventually the
meanings of each group begin
to consolidate and to constitute a definite
category”.57 The aim of forming these
“categories of description”, as they are known, is to “give
summary descriptions of parts
of data corresponding to conceptions of phenomena
... [T]he categories are not general characteristics of the conceptions but
forms
of expressing the conceptions.”58 In all,
four categories of description arose from the focus group interviews which aid
our understanding of the mooting experience.
The Results: The “Categories of Description” of Mooting
1. Mooting prepares students for the “real world” through the acquisition of various skills
It will be noted that the
title of this first category is very broad. It was very tempting to substitute
the phrase “professional
practice” where “real world”
currently appears, but to do so would involve a narrow reading of the comments
of
many of the students who felt that the real benefit in mooting was in its
fostering of life-long skills which would be of use in
that “real
world” which is often perceived to exist in isolation from universities.
The most basic level of response from students just focussed on the fact
that they had the chance to do something with their knowledge.
That in itself
was perceived as advantageous:
It was good to go through all the cases and take out what we have been learning theory wise and put it to a practical sense, because we go through and learn all these rules and principles but we don’t actually get up and apply them to a situation which is something practical.
Slightly more sophisticated than this was the view that mooting:
gives you an indication of what you perceive you want to do with advocacy later on in life. If you would like to be a barrister at least you can see if this is what is supposed to happen, sort of thing, instead of it just being bookwork;
or:
getting back to where the relevance of them are — I don’t know how they are compared to everyday court, because I don’t spend enough time in court but I think because you are going to be there eventually it’s going to be relevant — can’t understand how it couldn’t be.
However, all participants placed greater emphasis on the general skills of relevance to the “real world” rather than the preparation to become lawyers.59 This was borne out by many remarks but the following are fairly indicative:
It could be inferred from the data that these skills of which the students spoke are being acquired through their experience of mooting in accordance with Kolb’s Experiential Cycle of Learning, but one student actually spelt it out by saying:
But it’s excellent to learn from experience, I mean the more moots you do the better you are and you’re always learning which is terrific.
In conclusion, it can be seen that law students value mooting for the practical dimension it adds to their education. The skills they glean from this experience are clearly adversarial and related to lawyering, but that is not seen as their prime focus. The phrases “communication skills” and “the skill of thinking on your feet” occur over and over in the transcripts. It seems mooting builds the law student as a person and prepares them for that “real world” in a way that other forms of assessment do not. This is particularly apparent in regard to the next category of description — teamwork.
2. Mooting provides an opportunity for students to learn from their peers and develop group skills
Although this is related to the first theme or
description identified above, its prominence in the transcripts (and thus the
experience
of the students) warrants it a special place in the construction of
what mooting actually involves. In an interesting piece actually
concerned with
PBL in aviation studies,60 the development of team
skills in response to a teaching (or in the case of moots, learning) approach
based upon groupwork are well
documented. From the research conducted for the
purposes of this paper, it appears that many students are aware of the chance to
build relationship skills which mooting gives them.
The first year students,
having done only one moot, did not have as many “horror stories” to
recount on the mismatch of
personalities that can occur in the allocation of
mooting partners as did the more experienced students in third year. However,
all
students were agreed that moots provided the potential for meaningful
groupwork which did not exist elsewhere in the course. Typical
comments were as
follows:
This last extract raises the issue of conflict within the group and how that experience translates for the mooters. Despite a few personal grudges, that whole aspect is still viewed as an advantageous experience:
... in most situations we have had to work with other people so it’s meant that you have developed an ability to work as a team in some respects or you’ve learned how to survive as an individual in what’s supposed to be a team situation that doesn’t click, doesn’t work for one reason or another, either people aren’t interested or you can’t seem to get together or you don’t agree on the exact line you are going to take, so you split the arguments up and pretty much go your own way and come together in time for the moot. So I guess it helps you develop either team skills or coping skills.
This positive and philosophical attitude which many students adopt in regard to the teamwork aspect of mooting is demonstrated beyond doubt in the following extract which was the response of one student after another had suggested that mooters should be able to select their partners because “we want the best result [so] let’s get placed with somebody we know will help us achieve those results”:
Results are part of the problem where the results are less important than the learning part of it.61 I think being thrown in with somebody you don’t know is fairly likely to happen later on in the future anyway. Being involved in a case or something like that, depending on what avenue you are working through, you might end up working with someone you don’t know from a job previously and just be stuck with them and I think just being flexible is fairly important.
In conclusion, it can be stated that students are aware of and actually appreciate the benefits of teamwork that mooting can offer. Despite the chance that the moot planning reaches an impasse due to “terminal differences”, all students were agreed that it was a rewarding experience when the team worked well and an instructive one when it did not.
3. Mooting is an activity which causes in most students a powerful mixture of elation and terror
Much of the discussion which took place during the focus group interviews was concerned with students’ affective responses to mooting. It was clear that it is an activity which stirs up powerful emotions both positive and negative. As it is the latter which was probably the least surprising, the comments which reflected student anxiety about mooting will be examined first. They were along the following lines:
However, most students were keen to point out that despite, or maybe because of, this incredible amount of stress, there were rewards also:
This attitude was actually carried a lot further in many of the comments which indicated that many students actually like to moot. The following extracts are even more fascinating when one tries to think of any other pieces of assessment in legal education which would elicit a similar response:
Empowerment? Accomplishment?
Confirmation of vocation? Can this really be a piece of assessment which
students spend most of their
time dreading at Law School? It seems ironic that
so much is made about the anxiety involved — one student recounted stories
of colleagues being physically sick with terror — yet the self-confidence
which students gain is a much better kept secret.
The students were specifically
asked whether they felt similarly about other items of assessment, and despite
feelings of relief
when exams or assignments were completed, it seems nothing
comes close to moots in the range of emotions induced. Exams may terrify
but
there is still the saving grace of anonymity, which the oral presentation
required by moots does not afford students.
Interestingly, many students
thought the moots were “such a big deal” due to the formalities
which they were required
to adhere to. Going to the courts was a big part of
this for all students. Those who had done it felt it had added an edge to the
experience, whilst when it was suggested to the first years that they could just
as easily continue to moot in the University moot
court, the reaction was summed
up by the following statement:
You really wouldn’t feel like you were going anywhere or accomplishing something. It’d just be the same thing over and over again. It’s good to go a step up the ladder. Another factor which had a huge impact was the formal attire which students adopted for the purposes of their moot. This is illustrated neatly by the following exchange amongst first year students:
Yeah, that was a different part of it — getting dressed up for it really made it a more appropriate situation. Like if you had just turned up in your normal uni clothes, it would just be like doing another oral [presentation].
It put you into character.
Yeah, that was good.
When you say “into character” do you mean... which character?
A professional character.
Being professional — knowing your stuff. It sort of reinforces the fact, hey look at me — I know what I’m doing, I know what I’m doing.
It was something else that gave you confidence.
Apart from fear and stress, the only thing tarnishing this seemingly enriching experience was that several students thought that the actual moot was over quite quickly and was inadequately weighted given that you had been “eating, sleeping, drinking, breathing moot” for so long. This may be something subject convenors may wish to consider, especially in light of the above comments. Students are enjoying this piece of assessment and are deriving great personal advantage from it. Additionally, it involves a lot of time which academics could spend elsewhere. Surely then, it is to everyone’s benefit to weight it more heavily so that all parties feel that it is worth the effort from an assessment point of view as well as a learning one?
4. Mooting is an excellent way to learn the substantive law
Perhaps this fourth element of mooting is the most exciting and also the most important. Much of the discussion which occurred in the course of the focus group interviews centred on the power of moots as a learning experience. Some of this has been referred to obliquely in the foregoing sections, but there was also a definite theme present that in contrast to many other forms of assessment, mooting encourages students to adopt a deep or achieving learning approach. This is borne out by comments such as:
However, while there is very little written on the learning benefit of mooting, it is one clearly appreciated by students. Brown recognised that students who took part in the Jessup Mooting Competition on the basis of their interest in mooting, soon became “fascinated with international law as a subject of study”.63 Gaubatz was more revealing when he wrote:
In moot court problems, cases and their use have a significance sometimes unexpressed in the classroom. The limits imposed by procedural status, the use of obiter dictum and ratio decidendi, and reasoning by analogy, all take on new meaning when the student must try to use the case in support of his client’s position or to distinguish a case against him. By illumination, moot court can materially assist the educational process. It can clarify concepts commonly used in the classroom, and in effect can provide a tutorial for legal education.65
Generally though, this result from the interviews
accords with Jackling’s argument that the integration of academic study
and
practical training enhances and reinforces theoretical
learning.65
This feature of mooting was often
referred to as the way it “focuses my mind”, and this raises a
sub-issue, in that moots
themselves are fairly limited in the area with which
they deal. Students did not have a major problem with this but it was clear
that
although they often expressed a desire for more moots in their degree, they
acknowledged that there would be an awful lot of
law which they would not be
assessed on and thus not know. This is summed up in the following phrase:
I find they give me a good knowledge of a very narrow area of law, obviously, a particular issue, within a particular area of law — which I don’t imagine would prepare me terribly well except some knowledge of the law per se. But certainly process is good there, so I enjoy them for that part, but if I want to get broader knowledge or broader appreciation of a given area of law, then a more generalised assignment is perhaps better.
Concluding this section, it is worth noting that, in accordance with the feelings of extreme confidence students mentioned above, mooting also stimulates their interest and enthusiasm for the substantive law. This obviously owes a lot to the way they are required to approach the law in the case of a moot, but should also be cross-referenced with the theory section of this paper. The motivational aspect of situated learning through constructivism and experiential learning is highly relevant here. Students have control over their own learning and this is the result:
CONCLUSION: MOOTS AS ASSESSMENT
Of course, moots are just one of the many items of
assessment which can be presented to students at Law School. There are two
purposes
of assessment — summative and formative. Summative assessment is
concerned with certifying that the student has achieved a
certain level, so that
s/he may be presented to the world as possessing certain knowledge. Formative
assessment focuses much more
on the student, rather than the external world. It
is assessment for learning. “Students engage in the problems and discourse
of a given area and are given encouragement, response and feedback on what they
do, as appropriate, with a view to them becoming
more effective in their
learning.”66
Moots as part of the
undergraduate law degree seem to have less of a summative purpose than they did
at the time of their use in the
Inns of Court many centuries ago. Under that
system, moots were really the sole device whereby barristers received formal
acknowledgment
in their profession. With the rise of law as an academic
discipline and emphasis being placed on the attainment of a degree, determined
by the all important Grade Point Average (GPA), this qualifying function has
lessened considerably, though clearly marks awarded
for moots serve to make up
the student’s degree.67
However, moots did
not only serve a summative function at the Inns of Court. They literally were
the legal education of those who
sought to become lawyers. In this regard, they
served a formative purpose which was equal, if not more so, to their importance
as
providing a yardstick for formal qualification. Moots are formative in that
they require students to develop and strengthen their
own knowledge of an area
of the law, and legal processes and concepts generally, and provide incentive to
learn. The qualitative
data above demonstrates that students view moots
primarily as having a formative function. They encourage students to immerse
themselves
in an area of the substantive law, work closely with their peers and
develop several important practical skills. That was the focus
of almost all
students. They did not so much talk about moots as testing them, but rather as
focussing them in their learning.
Rowntree identifies six separate purposes
of assessment, which are related to the summative or formative perspectives. Of
those which
are not “administrative and go chiefly to people outside the
immediate teacher-student relationship”, he includes student
motivation,
feedback to students and teachers, and preparation for
life.68 The issue of moots and motivation needs little
comment, following, as it does, students’ own remarks. Rowntree states
that
“the line between coercion and encouragement is hard to
draw”,69 and certainly this is true of mooting.
Students recounted feelings of tremendous fear yet also enormous interest and
enthusiasm.
Are we coercing or encouraging them? It seems mooting is an example
of assessment which does both at a high level.
It is fairly easy to
appreciate that moots provide a concrete experience, but questions must be asked
as to whether legal educators
have been seriously encouraging the next step in
Kolb’s Experiential Cycle — reflective observation. Most of the
students
interviewed were critical of the amount of feedback they received on
their performance in moots. In a number of institutions, it
seems it is not
uncommon for mooters merely to receive a numerical rating with the invitation to
arrange to speak privately with
the academic involved, should they desire more
feedback. Given that many students will be reluctant to do so and will just let
the
matter drop, are we really depriving students of feedback which would enable
them to learn from — and improve upon —
their experience? Certainly
students can reflect on their experience individually and with their peers, yet
if they are to engage
in a truly meaningful experiential cycle of learning, it
will be helpful to know what they did well and not so well in the eyes of
the
assessor. A few students may be lucky enough to gain such feedback informally
but such an ad hoc approach scarcely seems satisfactory given the amount
of effort the exercise requires.
Following Gibbs’ suggestion, it may
be that lecturers should conduct a structured de-briefing session in order to
analyse the
moot with the students, and thus enable them to engage in critical
self-reflection.70 Boud, Keogh and Walker expand on
this theme in their book Reflection: Turning Experience into
Learning71 and have designed a three stage model
illustrating the components of meaningful reflection. Academics should be
conscious of their
role in facilitating student reflection — just because
it is called self-reflection does not mean that students can do it
without sufficient feedback from their teachers.
Ramsden says:
Assessment methods that are perceived to test the ability to reproduce accurately large quantities of information presented in class, or to manipulate procedures unthinkingly, tell students that our fine aims for conceptual understanding are but a veneer on the solid material of recalling facts.72
Moots do not fall
within this description of a poor or inappropriate assessment technique. A
theoretical understanding of their nature
should make this evident to us, but
the opinions and reactions of students confirms that they do not see moots as
something for which
they can memorise material without understanding it. The
phrase “eating, sleeping, drinking, breathing moot” shows how
absorbed in the task students can become. Obviously, it can be stated that moots
engage students in a learning process which is not
often seen in response to
many other forms of assessment. They clearly find it an educationally enriching
process, and this can be
ensured by the provision of at least a basic level of
feedback.
As we have seen, the use of mooting varies between Law Schools and
that situation will continue. There are advantages in all three
of the
approaches examined in this paper, and all of them go some way toward making
mooting an educational experience which is unique.
Hopefully though, an
increased understanding of which educational theories are in operation when
mooting occurs and what mooting
actually means to students, will lead to the
continued, and perhaps increased, use of moots in the legal education of
undergraduates,
in the manner most appropriate to the circumstances of each Law
School.
* Associate Lecturer, Faculty of Law, University of Western Sydney,
Macarthur. The author gratefully acknowledges the support and
advice of both
Lyndal Taylor and Mary Keyes. The four anonymous referees are also thanked for
their helpful suggestions. The author
alone remains responsible for the contents
of this paper.
© 1996. [1996] LegEdRev 3; (1996) 7 Legal Educ Rev, 67.
2 Women were not admitted to the Inns.
3 Prest compares the education provided by the Inns to that offered by the two universities, Oxford and Cambridge: “The essence of the inns’ exercises was the formulation and debate of a hypothetical case or set of circumstances involving one or more controversial questions of law; just as in disputation the university undergraduate maintained a thesis by argument from philosophical and theological authorities, so in ‘case-putting’, bolts and moots, the inns of court student sought to justify his interpretation of the law by citing the maxims, precedents and principles which were the authorities of his craft.” (WR Prest, The Inns of Court under Elizabeth 1 and the Early Stuarts 1590–1640 (London: Longman, 1972) 116.
4 C Warren, A History of the American Bar (Buffalo: Hein & Co., 1990) 29.
5 W Holdsworth, Some Makers of English Law — The Tagore Lectures 1937–38 reprint ed (Buffalo: Hein & Co., 1983) 49.
6 That is sat as an inner barrister and recited the pleadings.
7 Lord Hailsham ed, Halsbury’s Laws of England 4th ed (London: Butterworths, 1973) vol 3, Title: Barristers, at para 1102.
8 This general term is used because it is clear that lawyers were all educated in this way for many years before the profession split into two branches, which Warren dates at about 1556. Warren, supra note 4, at 28.
9 For an interesting discussion on the development of universities in legal education, see D Sugarman, Legal Theory, the Common Law Mind and the Making of the Textbook Tradition, in W Twining ed, Legal Theory and Common Law (Oxford: Basil Blackwell, 1986) 29–33.
10 M Le Brun, & R Johnstone, The Quiet (R)evolution — Improving Student Learning in Law (Sydney: Law Book Company, 1994) 307.
11 JT Gaubatz, Moot Court in the Modern Law School (1981) 31 J Legal Educ 87 at 90–96.
12 Le Brun, & Johnstone, supra note 10, at 308.
13 Mock trials seem to be more commonly used in Business Law courses and two interesting examples of this are described by C J Miller, Mock Jury Trial: A Model for Business Law I Courses (1987) 6 J Legal Stud Educ 91; and AG Schaefer, Mock Trials: A Valuable Teaching Tool (1989/90) 8 J Legal Stud Educ 199.
14 Le Brun, & Johnstone, supra note 10, at 309.
15 The author wishes to thank the staff of the Law Faculties of Griffith University, the Queensland University of Technology and the University of Queensland for their assistance in providing information relevant to this section of the paper.
16 It should be noted that the moots programme at QUT has just been reviewed by a Working Party of the Undergraduate Law Curriculum Committee. The recommendation was made that the current system of mooting should be retained, but with several strategies suggested to increase students’ opportunities to moot. However, moots remain an optional form of assessment within specified units.
17 It is presumably for this reason that the majority of UQ moots ask students to argue an appeal from an actual decision handed down by a real court.
18 The Moot Guides of both QUT and UQ are evidence of this.
19 This shall be developed later, in the context of the qualitative research.
20 J Biggs, What do inventories of students’ learning processes really measure? A theoretical review and clarification (1993) 63 J Brit Educational Psychology 3.
21 “When the term ‘strategy’ is imported from cognitive psychology, what really is meant is a tactic, a procedure, for handling a set task”. Id at 6.
22 BS Bloom, Taxonomy of Educational Objectives: The Classification of Educational Goals — Handbook 1, The Cognitive Domain (New York: Longmans, Green & Co., 1956).
23 J Biggs, supra note 20, at 7.
24 P Ramsden, Learning to Teach in Higher Education (London: Routledge, 1992) 41–44.
25 Id at 44. Derek Rowntree fuses all aspects of Blooms’ Taxonomy by saying that even “the Ph.D. student cannot write his thesis (however cognitive) without having both a commitment (affective) to the value of what he is doing and the ability (psychomotor) to type or write by hand.” D Rowntree, Assessing Students: How shall we know them? (London: Kogan Page Ltd., 1987) 95.
26 J Biggs, supra note 20, at 10. Petter writes that law curricula traditionally are “reluctant to include affective learning objectives”, and so moots are an exception in that they do tend to take account of the affective domain, whilst still looking at the cognitive. A Petter, A Closet Within the House: Learning Objectives and the Law School Curriculum, in N Gold ed, Essays on Legal Education (Toronto: Butterworths, 1982) 95.
27 In reality it is more commonly a case of collusion between the mooters than prediction. This, however, involves probably more strategies as the mooters negotiate with each other and decide how much of their case to reveal to the opposing side.
28 S Bobbitt Nolen, Reasons for Studying: Motivational Orientations and Study Strategies (1988) 5(4) Cognition & Instruction 269 at 272.
29 J Biggs, Introduction and Overview, in J Biggs ed, Teaching for Learning — The View from Cognitive Psychology (Victoria: ACER, 1991) 2; though Candy prefers to explain it by saying there “is not a single monolithic theory, but rather a cluster of perspectives united by underlying similarities in worldview.” P Candy, Self-Direction for Lifelong Learning (San Francisco: Jossey-Bass Publishers, 1991) 252.
30 Biggs, supra note 29.
31 R Säljö, Learning in the Learner’s Perspective II: Differences in Awareness — Report of the Institute of Education, No.77 (Sweden: University of Goteborg, 1979) quoted in G Gibbs et al, A Review of the Research of Ference Marton and the Goteburg Group: A Phenomenological research Perspective on Learning (1982) 11 Higher Educ 123 at 134.
32 Säljö, supra note 31.
33 LB Resnick, Introduction, in LB Resnick ed, Knowing, Learning and Instruction: Essays in Honour of Robert Glaser (Hillsdale, New Jersey: Lawrence Erlbaum Associates, 1989) 1.
34 Le Brun, & Johnstone, supra note 10, at 72.
35 JS Brown, A Collins, & P Dugid, Situated Cognition and the Culture of Learning (1989) (Jan-Feb) Educ Researcher 32 at 34.
36 For general characteristics of lawyers which the Queensland legal profession is looking for, see JK de Groot, Producing a Competent Lawyer — Alternatives Available (Sydney: Centre for Legal Education, 1995) 130.
37 DA Kolb, Experiential Learning: Experience as The Source of Learning and Development (New Jersey: Prentice-Hall Inc, 1984) 21.
38 G Gibbs, Learning by Doing — A Guide to Teaching and Learning Methods (London: Further Education Unit, 1988) 55.
39 For a generic view of roleplays see Gibbs, supra note 38, at 58–61.
40 L Andresen, D Boud, & R Cohen, Experience-Based Learning, in G Foley ed, Understanding Adult Education and Training (Sydney: Allen & Unwin, 1995) 207.
41 Id at 207.
42 K Winsor, Introduction to Materials for Students — Problem-based Learning Segment, unpublished paper (Sydney: College of Law) quoted in K Winsor, Toe in the Bathwater: Testing the Temperature with Problem-based Learning (1989) 7(1) J Professional Legal Educ 1 at 2.
43 R Cowdroy, Concepts, Constructs and Insights: The Essence of Problem-Based Learning in Chen et a1, ed, Reflections on Problem Based Learning (Sydney: Australian Problem-Based Learning Network, 1994) 48.
44 D Laurillard, Implications of research for the design of problem-solving tasks, quoted in JA Bowden ed, Student learning: research into practice — the Marysville Symposium (Melbourne: Centre for the Study of Higher Education, University of Melbourne, 1986).
45 Of course, there is now a wealth of literature on this topic, but a good place to start is P Ramsden, Learning to Teach in Higher Education (London: Routledge, 1992) ch 4.
46 Laurillard, supra note 44, at 171.
47 D Watkins, & M Regmi, An Investigation of the Approach to Learning of Nepalese Tertiary Students (1990) 20 Higher Educ 459.
48 The realities of group work in a PBL situation are discussed succinctly by M Conrick, Problem Based Learning — Managing Students Transitions, in Chen, supra note 43, at 244–47.
49 C Marshall, & GB Rossman, Designing Qualitative Research (California: Sage Publications, 1989) 78.
50 M Quinn Patton, Qualitative Evaluation and Research Methods 2nd ed (Newbury Park: Sage Publications, 1990) 13.
51 R Tesch, Qualitative Research — Analysis Types & Software Tools (New York: The Falmer Press, 1990) 2.
52 See for example, RA Krueger, Focus Groups — A Practical Guide for Applied Research (California: Sage Publications, 1988); and DW Stewart, & PN Shamdasani, Focus Groups — Theory and Practice (California: Sage Publications, 1990).
53 F Marton, Phenomenography: Exploring Different Conceptions of Reality, in DM Fetterman ed, Qualitative Approaches to Evaluation in Education (New York: Praeger, 1988) 179.
54 Tesch, supra note 51, at 65.
55 AL Russell, The Synergetic Focus Group Discussion as Data for Phenomenographic Research, unpublished manuscript, School of Language and Literacy Education, Queensland University of Technology, September 1993.
56 C Edelsky, Who’s Got the Floor? (1981) 10 Language Soc’y 383.
57 Tesch, supra note 51, at 92.
58 L Svensson, Theoretical Foundations of Phenomenography, paper presented at Phenomenography: Philosophy and Practice Conference, QUT, Brisbane, November 1994.
59 This may have something to do with the fact that all Griffith University Law students must also be studying another degree, the two being integrated. The aim of the Law School is to “create a law degree that not only provides the academic stage of a professional lawyer’s education but also an education that is of use in the many other purposes to which law degrees are increasingly put.” Appendix One: The Griffith Law Curriculum, (1992) 1 Griffith L Rev viii. However, many of the students indicated throughout the course of the interviews that they were intending to practice law professionally, yet they were in accordance on this issue with those students who did not reveal their career intentions.
60 P Anderson, & I Henley, Problem-Based Learning and the Development of Team Skills in Aviation Studies, in Chen, supra note 43, at 319.
61 Author’s emphasis.
62 This quote also raises a separate but no less interesting issue — that of students’ perceptions of law. Whilst students can obviously identify mooting with playing “the part of a lawyer”, do they have a similar perception in regard to other work which is actually done by lawyers — including alternative dispute resolution? Are Law Faculties perhaps presenting students with an unbalanced view as to what it entails to practice law — emphasising adversarial, court-based work at the expense of exploring other facets of the legal profession’s role?
These two questions clearly relate to the issues discussed in this paper, but would be more appropriately and comprehensively answered in the context of separate research.
63 C Brown, The Jessup Mooting Competition as a Vehicle for Teaching Public International Law, in The Canadian Yearbook of International Law 1978, vol 16, 332 at 335.
64 Gaubatz, supra note 11, at 89.
65 N Jackling, Academic and Practical Legal Education: Where Next? (1986) 4 J Prof Legal Educ 1, at 4.
66 D Boud, Assessment and the Promotion of Academic Values (1990) 15(1) Stud Higher Educ 101, at 102.
67 Though note that moots are a significant feature of Bar Practice Courses for those graduates seeking to qualify for admission to the Bar.
68 See D Rowntree, Assessing Students: How shall we know them? (London: Kogan Page Ltd., 1987) 22–31.
69 Id at 23.
70 See Gibbs, supra note 38, at 46–48 and 61 for a simple model of what this process involves.
71 (London: Kogan Page, 1985) 36.
72 Ramsden, supra note 24, at 72.
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