February 29, 2012
Reform Moot Court Competitions
Here’s a thoughtful post from guest blogger Ruth Anne Robbins, Clinical Professor of Law and Director of Lawyering, Rutgers Law School—Camden.
It is moot court season. Law students looking quite purposeful in their conservative suiting as they tell you that they will have to leave class early today or that they will be missing a class or two next week. It’s the season when all law schools and practitioners involved with these competitions might tell ourselves that we can use them to help reform legal education.
The existing paradigm of moot court competition has been in place for several decades. Teams of students prepare briefs and practice oral arguments about some of the nattier legal issues facing experts in a particular field of law. There’s a minimal record involved, and the standard of review is usually de novo. The competitions prioritize pure legal analysis and the technical skill of advocacy at the high federal levels. Although faculty coaches can provide feedback during the oral argument practices, the students write their briefs without the individualized feedback that students received in their legal writing courses.
If we want to teach our students essential skills that they will need and use early in their legal careers, organizers of moot court competitions need to reassess their pedagogical goals..
When we talk about modifying the law school curriculum to better help our students become “practice-ready,” we are actually talking about helping students become client-ready. Clients need lawyers to muck around in facts, to problem-solve, and generally to exercise judgment as well as technical skills. To get there, we need to create more lawyering moments for our students: a combination of legal analysis, factual analysis, skills, and client-centeredness. Clinicians are experts at creating these moments. It makes sense to make these moot court programs more clinical.
What does a client-centered moot court program look like? It looks like a program that:
1. Bridges legal writing and clinical education.
2. Focuses on persuasive advocacy on behalf of a lifelike client.
3. Teaches students to understand and then tell the client’s story in order to advocate for an outcome that is acceptable to the client.
4. Asks the student to grapple with much more common mixed standards of review.
5. Permits a professor to give individualized feedback on the brief as well as the oral argument.
In other words, make the moot court competition worthy of being a part of modern legal education.
February 29, 2012 | Permalink
I generally agree, but I have serious reservations about letting professors give feedback on briefs. Some faculty coaches would be willing (and able) to give teams the time, effort, and expertise to critique competition briefs exhaustively, with respect to content, large-scale and fine organization, and writing style; others would not. By and large, the former's teams will produce better briefs than the latter's will. Do we really want to reward the teams whose briefs are less their own work and more the work of faculty members? It is certainly true that appellate briefs in the "real world" are the product of collaborative effort, but allowing faculty members to participate in that collaboration for moot court competitions is far from a no-brainer.
Posted by: Sean Anderson | Mar 1, 2012 10:56:15 AM
What about another wrinkle--that the oral argument judges do not also judge the briefs? It's so unrealistic to divorce the panel's impression of the advocates' ability based on the oral performance from the impression they'd get from the written performance. At the very least, it would be nice if the judges would have read the advocates' briefs (rather than a generic bench memo).
In general, I think moot court would be a much more worthwhile educational experience if these and other changes were made to make it more like appellate advocacy and less like a sport. But I think that there is a lot of institutional and historical support for the "sporting" aspect of moot court, so that such changes aren't likely to happen broadly, at least not anytime soon.
Posted by: Jessica Slavin | Mar 1, 2012 8:36:08 AM
Thank you, Ruth Anne, for thinking creatively about one way to help overcome one of the biggest flaws I see in modern legal education: a laser-like focus on legal rules and logical reasoning. While those skills are clearly important and need to be developed in all law students, in most schools they tend to crowd out other important skills training: fact investigation, client interviewing and counseling, reasoning with facts, and solving client’s problems at a more personal level.
Let’s face it: for probably 95% or more of all lawyers, their daily lives are not spent in the law library, researching the law, studying its nuances, trying to find ways to change it or reform it. Most lawyers spend most of their time interacting with clients: real people with real needs. When I was in practice, I spent the vast majority of my time figuring out what happened to cause the dispute. I became something of a detective, trying to figure out what really happened “out there.” I did discovery; I took depositions, read documents, interviewed witnesses and clients, creating a record of the dispute. I needed to understand human nature and motivation; why did these people do what they did in this situation? And how could I help solve their problems, either through the court system or through some other form of counseling?
Law students need to learn these skills because they are going to spend most of their legal careers doing these things. But law schools generally do a pretty poor job of preparing students to meet actual clients. Creating moot court competitions with complex, realistic records that allow students to create alternative stories for their respective clients is a big step in the right direction. I would even suggest that not all moot court competitions need to be set in an appellate court, since even most litigation attorneys seldom handle appeals. Set the problem up as a summary judgment motion in trial court, where the facts are more in play.
There is a lot we can, and should, do to focus on client-centered teaching. Rethinking moot court is one important way to start doing this.
Posted by: Ken Chestek | Mar 1, 2012 7:13:32 AM
I totally agree with you, Ruth Ann. I was an appellate lawyer for ten years before I began teaching, and always ran a copy of my brief by both the partner and the client before I filed it. In later years, I asked new associates to read the brief to ensure that someone with little knowledge of that area of the law received a clear explanation in my brief. Coaches should be able to review the brief and provide comments. Competition organizers should also provide, in addition to the opinion in the decision being appealed, the original pleadings in the case and either deposition transcripts, motion hearing transcripts, or trial transcripts to help the students learn how to read a "real" record and to pull from it the relevant facts and procedural history. That would, of course, require more work on the part of the competition organizers, but in our moot court class, we've started using real cases in which we can get the original pleadings and motions through PACER. In my advanced appellate practice class, I use cases in which I was either the attorney for a party or attorney for amicus, so I have transcripts and pleadings that my students use. Thank you for your post and for your suggestions.
Posted by: Evelyn Calogero | Mar 1, 2012 6:57:13 AM