Saturday, June 1, 2019

LAW (Moot Infinity Stone #1)

You're ready to moot. You're dying to win.

"ALL RISE!" the bailiff shouts. The judges walk in. Your hand starts to shake...

Are you truly ready? Are you truly good enough to win?

Truth is, most of us aren't. Mooting is war. And to win in any war, you need to best all the other warriors on the field. You need sharp weapons. You need strong allies. Above all, you need that extra super power to give you an edge...

So what's the secret to winning in moot?

It's a question I've pondered long and hard, for the past few years guiding raw and battle-hardened mooters at the trenches. And one day, during a miserable journey home in retreat after defeat, a spark of enlightenment lit up in my head.


There are six stones, with single-word names all starting with 'L'. And those who can unlock their powers combined is bound to conquer the Moot Court Universe (MCU)!

So what are these six stones?

Not so fast, kiddo. Let's not spoil the suspense. One stone at a time. Takes a while to explain the full extent of powers embodied in each stone. So for the next 6 weeks, I will reveal the six stones, one by one.

And the first Moot Infinity Stone is...LAW

"I can MOOT all day!"

* * *

Seems pretty obvious and truistic, right?

Moot is about law. Moot is for law students. In almost every competition, a big chunk of the marks is allocated for "Knowledge of Law" (and sometimes, there's even a follow-up criteria for "Application of Law").

But what does 'law' mean in the MCU?

Is it the numbers of authorities? Citing the best case in your favour? What if there are no cases on point at all?

There's no complete definition of 'law', nor any fixed yardstick to grade the strength of legal authorities. Law is indeed an essential weapon in mooting. But not many of us use it well - and sometimes, we even end up cutting ourselves.

To truly unlock the power of LAW, one has to understand a few fundamental truths about what LAW is and does (and what it isn't and doesn't). It's not as simple as you think. Or maybe it's something you always long suspected but dare not accept...

* * *

Rule #1: Law is a means, not an end

Yes, many of us are naturalists and constitutionalists at heart. The rule of law. Fiat justitia ruat caelum (let justice be done even if the heavens may fall). No man is above the law.

Put away your idealism. You're not writing a Ph.D thesis. You're mooting a fictional case in front of a panel of judges who may have just skimped through the moot problem for the very first time over coffee in the morning (which probably happens in the real courtroom as well).

Sure, some competitions in the MCU provide a bench memorandum for judges. Some judges take the time to painstakingly read the written memorials. Some judges are even experts in the area of law related to the moot.

But seriously, do you think that the law really matters in a moot? That the judges have a checklist of answers? That they're actually thinking: "Oh, she just cited Nicaragua v USA! 5 marks! Oh, she knows the facts of the case. 5 more marks!"?

Of course not, kiddo. Watch the judges closely. Are they furiously taking down notes or listening attentively with the occasional scribbling? The latter, usually. That's not to say that the law doesn't matter. Of course, it does - but just not in the way you're thinking. Your arguments is the ends, your authorities is merely the means. Law is secondary, law is supportive.

Moot judges are impressed by not how much law you know, but how well you can twist and turn the law to reinforce your argument.

Right and wrong is a matter of perspective

* * *

Rule #2: Law is grey, not black and white

As mooters, we're always searching for the best argument. And having found it (or so we think), we'll try to build a wall of authorities around to protect it.

But no legal argument is without weakness. No amount of authorities can make an impregnable fortress.

For every legal principle has exceptions. And every legal principle can be applied in different ways.

You have a landmark case right on point on the facts? Whoops, your opponent or the judge just distinguished it!

You have majority and history on your side? Whoops, a new case just came up to overrule them or restate the law in less favourable terms!

Every legal authority - even those which don't seem to favour you at first blush - can be turned and twisted in your favour. Or there's usually an opposite authority that can counter an unfavourable authority. Or if you're really short of authorities, there's always equity, policy, justice, and all the fancy out-of-the-box stuff to turn to.

In fact, somewhat counter-intuitively, a good argument usually doesn't even need protection. It can stand alone in the battlefield. It's armed with the purest form of LAW - principles. A single principle can defeat an army of authorities...

* * *

Rule #3: Law is about principles, not authorities

When we think of law, we often think of statutes and cases. Technically speaking, that's right. Primary sources of law. Binding precedents.

Truth is, LAW is about principles - basic first principles. Good faith. Estoppel. A party can't blow hot and cold. Yes, the fancy out-of-box stuff... No, that's not quite right. Principles are smack right in the centre of the box! In fact, it's actually the statutes and cases that are peripheral, spinning around the principles.

Moot submissions are compressed within 15-20 minutes - submissions that would usually take a few hours or even days for lawyers to present in actual practice. There's no bundle of authorities, no flipping through cases after cases with a fine comb.

Time is short in the MCU. Which makes principles even more impactful than authorities. Top mooters understand this well. Which is why they can explain the law in succinct terms so clearly that judges are left nodding their head even without hearing an authority.

When mooters lose, a common complaint goes: "But our law is better!". But that's a rather naive way of envisaging what the law is (or rather, should be). Sorry, that's loser talk.

A top mooter uses LAW with precision, like a sniper rifle. They can win an argument and the judges' heart with a single shot. Beginners blasts away 101 cases, like a machine-gun. None of the bullets hit, and they whine about how they made more shots.

You win a moot by hitting the bullseye, not by firing away the most shots.

Whoops! Missed your shot, agent!

* * *

LAW is a powerful cornerstone in moot. That's obvious enough.

But truth (and trouble) is, most mooters understand little of how the LAW actually works in the MCU (and real world).

LAW is a means, not an end itself.

LAW is grey, not black and white

LAW is principles, not authorities.

I can list a couple of more 'truths' on LAW. But those 3 basic rules should suffice to drive home my point - that we need to change the way we view and use the LAW in our mooting battles.

And that's just one stone to capture and master. Five more stones to go...

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