Saturday, November 21, 2020

Moot or Moot Not, There Is No Try

Another week, another moot.

This last moot was quite a funny one. The competition was rushed (pure knockout rounds - lose one match, you're out!). Judges hand in their 'scoresheet' via a simple Google Form (which is a misnomer because they only have to select the winning team and write brief comments - no scores!). There isn't a best oralist award nor any oralist ranking except for the finals (because no scores, remember?).

The organisation leading up to the competition had no short of 'bloopers'. The timeline kept changing, leaving the students in a state of uncertainty. Despite initially announcing that no memorials were required, they suddenly reintroduced the requirement. Funniest of all was assigning team codes that contained the abbreviation of unversities - despite the rules mandating anonymity (duly amended when our team prompted them)!

I get it. There's a pandemic going on. A virtual moot is a lot harder to organise. Better a lite version than nothing at all.

Still, there are certain standards to maintain. The students have been working hard. It's only fair they get some decent mooting experience. Yet, half of the teams were knocked out by the very first round. Preparation time: 4+ months. Submission time: 15 minutes. That's quite sad.

* * *

In my last article, I wrote about how moot judges should not deal in absolutes. It was published before this moot. Which was a pity, because the moot would've given me some really good material. Anyway, as an addendum, here are some of the absolute gems...

"Please take care of your pronounciation... I happen to train public speaking..."

This was uttered during the post-hearing oral feedback, and also appeared in the one-liner written feedback. Noted with thanks. Sorry about the bad England. Guess we have to start filtering mooters based on their MUET and IELTS results now...

"Don't give me the law... I have already read your written brief..."

Ouch. Rookie mistake. Not focusing enough on the facts.... But wait! Before the competition, the mooters had specifically asked the organisers whether there will be a memorial exchange - and the response was that no memorial would be sent to the opposing team AND judges. So how did this particular judge get his hands on? If the mooters knew that, they would've structured their submission differently and... *sigh* never mind...

* * *

I could go on and on. But I think the point has been made. The idea is really not to blame or embarrass anyone. Everyone is struggling to cope with the difficult conditions.

Still, I hold firm to what a wise Jedi master once said: Try not! Do. Or do not. There is no try.

If you want to keep the mooting flame alive, then hold the torch high. This applies to everyone - students, judges, organisers, coaches, and so on. It's all or nothing. Go hard or go home.

In short, moot well, or don't bother at all. Sorry, but trying ain't good enough.

Wednesday, November 11, 2020

A Moot Judge Deals Not In Absolutes

How do you tell the difference between an excellent and average moot judge? From the content of their post-hearing feedback, of course.

As the wise Jedi Master Obi-Wan Kenobi once said: "Only a Sith deals in absolutes."

Let me make a few things clear. First, being a mediocre moot judge has no bearing to one's competence as a professional or character as a person. Second, a 'moot judge' here refer to both judges and arbitrators in mooting competitions set in the courtroom and arbitration respectively. Third, and above all, please don't take every word I say literally - there are plenty of nuances to the proposition I'm making that's too complex to explain in a single article.

An astute reader may immediately jump up: "Ah ha! Isn't your proposition itself an absolute?" Well, not quite. The gist of my proposition is for moot judges to stray away from 'absolutes'. To keep an open mind. To not have pre-conceived notions of what mooters should or should not do or say.

* * *

Let's run through a few points.

1. There is no one right approach

It's common to hear judges say "Every case turns on the facts". At the outset, it's rather odd to hear legal practitioners to downplay the significance of the 'law'. But I get what they're saying - students tend to focus too much on stating the law, rather than applying the law. That said, it's too sweeping of a statement to say that factual arguments should always prevail over legal arguments. The simple reason being that their priority ultimately depends on the issue at stake.

Some issues are more technical (i.e. procedure), some issues are more fact-driven (i.e. breach and damages). Such categories are not definitive, mind you. A procedural issue can sometimes be fact-specific (e.g. abuse of process), whilst damages can be legalistic (e.g. interpretation of limitation of liability clauses). The law may be stronger for one side, whilst the facts stronger for the other. Point is, choice of arguments is purely situational. A good moot judge appreciates why mooters give varying emphasis on law and facts - and does not arbitrarily penalise mooters for prioritising one over the other.

2. There is no one right argument

The whole point of a moot is that every issue is meant to be argued. Yes, a mooter should generally present their 'best argument' upfront first. But this is easier said than done. For different judges have different ideas of what's the strongest or weakest argument for a particular issue. It's clear in the rules that a moot shouldn't be judged on the merits. This means that the quality of arguments should be weighted on an objective standard, not a subjective standard. Recently, I watched a judge even advised a mooter to provide an alternative argument that would effectively mean conceding the entire ground!

As a judge, I always try to keep an open mind. There are no 'dead-end' arguments (unless fundamentally unsupported by law or fact). I can reward a mooter with high marks for an ingenious argument which I personally don't agree with and can think of possible rebuttals (which the opponent doesn't pick up). I can give two different scores to two different mooters presenting the exact same argument - because one mooter expounded more persuasively than the other. Point is, judges shouldn't assess mooters on how we personally like or dislike their arguments at face value.

3. There is no one right advocacy

Mooting - live or virtual - is replete with contrasting feedbacks. One judge said: "Please don't drink water in front of the screen. It's quite rude. Turn away to sip if you are thirsty." In another moot, the judge said: "It's good to sip on water to collect your thoughts whenever you need time to answer a question". The first criticism seems nit-picky and trivial. The second can backfire - if mooters keep doing that, then judges will instinctively interpret every sip as a sign of hesitance and weakness (indeed, this was astutely noted by a third judge). How are the mooters expected to reconcile such contradictory views?

Simply put, they can't. There are plenty of other potential 'minefields'. Another example is referral to the record - some judges want mooters to patiently wait and make sure everyone is on the same page, some judges are put off by the long pause. Personally, as a judge, I really don't care and read too much into such behavourial habits (then again, I sometimes feel the need to gently sound a caution because other judges may feel strongly against it). Point is, judges should not expect mooters to be aware of all our personal preferences (or cultural norms). So long as their individual style does not substantially impede their submission flow, judges shouldn't penalise or even comment on such details.

* * *

Ultimately, the whole point of a moot is to prepare law students towards legal practice. Hence, as much as possible, the assessment and feedback of judges should reflect the realities of advocacy (rather than specific to the exclusive inner rules of mooting). As moot judges, we must not lose sight of the woods for the trees. We shouldn't be dealing with advice in absolute terms that will only confuse or misdirect students in their future legal career.

Students are actually good listeners and fast learners. They'll take every word we say to heart - or even embrace it as the 'gospel truth'. Whilst it definitely falls upon them to use their own discretion to filter our feedback, we also should play a part by focusing on the key lessons and avoiding trivialities.

So let us not deal in absolutes. The law is not black and white. Be like a Jedi, not a Sith.

Sunday, November 1, 2020

Law Students Adapting To The New Normal (ALSA Malaysia)

On 31 October 2020, I was invited for a panel session by the Malaysian chapter of Asian Law Students' Association (ALSA). Together with Miss Puteri Sofia of Taylor's University, we talked about what law students can and should do to adapt to the new normal.

Right from the get-go, we made it clear that the 'new normal' here doesn't simply refer to life during the COVID-19 pandemic. Rather, the 'new normal' refers to the future of legal education - a future that has been in the making long before the pandemic (and merely hastened by it). In other words, the real impact of COVID-19 - for better or for worse - is to bring forward the future few years earlier.

* * *

Much of what I shared during the panel discussion have been previously shared in my past articles (for instance: "Three Ways To Keep Calm And Embrace Virtual Learning"). I won't repeat myself like a broken record, so I'll focus on something fresh - diversification.

Yes, 'diversification' is a loaded word that carry multiple meanings. Here, I'm refering specifically to our medium of learning. We shouldn't just stick to our course syllabus and lecture notes. We shouldn't be stressing excessively over studying for exams and completing assignments. No, there's more to legal education than what is taught in law school. Law school (at the undergraduate level) is merely a base, a foundation.

The best part about the virtual learning is saving time - no more hassle of commuting and beating traffic, and you're able to wake up an hour before class. The shift from final exams to continuous assessment lessens the stress from rote revision. With the extra time and energy saved, you're able to channel your focus on other productive things.

* * *

Internship - Yes, it's possible to do part-time work in the middle of semester. There are many forward-thinking law firms out there willing to take on interns or paralegals. Research tasks are passed on via emails. Coming into office may not even be required. Allowance on an hourly basis can be quite enticing. Of course, a lot depends on your level of competence and commitment. The job can come with high expectations. But why wait for the semester break when everyone else is rushing and competing for placement? Your chances of landing a gig may even be higher during mid-semester!

Research - If actual legal work is too daunting or you're still too raw, then research work is a productive alternative. There are always lecturers looking for research assistants. Or if you're even more ambitious, you can take a stab at publishing your own articles for publication on online student journals (or even real academic journals). In this digital age, every digital footprint can count. More than a decade ago, I published a modified version of one final year assignment on a website. Amazingly, students still ask me about it many years later (and someone even cited as an authority in a moot competition)!

Mooting - Last but not least, there's always mooting - my personal passion. I've already written so much about mooting, so I won't delve into its perks and highlights (not that anyone needs convincing). Right now, most moot competitions have gone virtual - including Jessup and Vis. Of course, virtual mooting isn't quite the same as the real thing. Still, one upside is that international competitions have become more accessible to everyone due to lack of travel costs. Now's the best time to join far-flung competitions you can only dream about. And even if the pandemic lifts, there's a chance that many competitions will remain virtual moving forward (in step with legal practice transitioning more to virtual hearings).

* * *

The COVID-19 pandemic may well changed legal education forever. Where others see changes as problems, you should see them as opportunities. The new normal is here to stay, for now and the future.