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.

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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.

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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.

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