Moot Points for Clinical Teachers
by
Jean Koh Peters

Many teachers in law school client services clinics prepare their students for specific case events -- be they client interviews, negotiations, or in-court examinations or arguments -- through mooting. Since these moots involve many of the real-life situations for which the students will need to be prepared, they are often the perfect solution for supervisor, student, and client.

In many instances, mooting resolves important dilemmas for clinical teachers seeking synergy between their twin duties to provide excellent service to the clients and excellent education to the students.

Some teachers may worry that an overreliance on simulated experiences based on facts unrelated to the students' clients' cases may send students a message that lawyering is about lawyer performance rather than service to clients; mooting for an event important to an actual client, however, keeps the client at the center of the endeavor.

Others fret about throwing students into real-life lawyering without the benefit of adequate training. Mooting can offer the students a safe forum for education as well as experimentation, and they can do so in a context narrowly tailored to equip students for a future important event. Thus, this relatively simple device promotes excellence in both client service and professional training, and it does so in a constructive and time-efficient context. What a useful teaching mode we have created!

Unfortunately, the carelessly structured moot can also hinder client service and student learning by panicking or traumatizing the student, compromising the supervisor-student relationship, confusing the student, or failing to help the students keep a clear perspective on what is most important -- the client's stake in the whole process. It is high time then that we paid proper respect to mooting; at the same time, we need also to identify both the useful components of the constructive moot and the pitfalls of careless mooting.

The principles and 10 tips below offer some ideas that can be implemented easily and can dramatically improve our use of mooting. These ideas will be offered in the context of mooting for judicial arguments; keep in mind, however, that students and clients can be mooted for any case event.

Three central principles of excellent mooting:

Consider the client's needs

First and foremost, all preparation should include as much information as the supervisor and student know about the client's subjective understanding of the event. How important is this event to the client? How does the client perceive this event?

This ongoing attempt to understand the case as well as possible from the client's point of view should color all other planning.

Consider how the issues raised relate to the lawyer's theory of the client's case

As in all trial work, the lawyer's theory of the case -- that is, his or her publicly announced understanding of the facts in the client's world relevant to the legal issues raised -- must drive all actions in the case. Therefore, all performance events must act either to enhance the lawyer's understanding of the theory of the case (as in private conversations with the client or important witnesses) or showcase the lawyer's theory of the case (as in negotiation or trial strategies). In their preparation, supervisors and students must be careful not to sacrifice their overall strategy and vision of the case merely to gain short-term logistical victories.

Focus on your theory of the case. Mooting that ignores this precept, or that focuses on too many details, may teach students to ignore the big picture in case preparation.

Decide what structure of mooting will best prepare this student for this event

Students approach any moot for a real event in particular contexts: the context of the client's case; the context of student-supervisor relationship; and the context of the students' own personal and professional development. For this reason, each mooting experience should be designed fresh for these students. The supervisor should avoid deciding that a certain kind of mooting would be excellent for student X because it worked two years ago for student Y. Every series of moots must fit its own particular circumstances, and teachers should be careful to structure the moot in ways that create a constructive educational and professional experience for this student and this client alike.

Ten planning tips

1. Start with a baseline moot

An initial moot should establish the baseline: how a student would do if forced to perform without further preparation. This moot can be held immediately. In my experience, these moots usually show that students already know most of what they need, which allows them to focus on what could be critical at the final event. This first moot should be the length and expected timbre of the real event. If the judge is known to allow students ample time to speak, then students should be prepared to speak at length; if the judge will be all over students from the start, then students should experience that possibility as well.

The baseline moot should also target foundational parts of the case. In the context of a judicial argument, students should be asked to refer to the record, to summarize the holding of a case, and state the facts of a critical precedent.

This baseline moot will establish the agenda for further moots. Sometimes it is best to plan the future series after a baseline moot has been completed; these moots can then target only what is absolutely necessary.

2. Decide how many mooting sessions to conduct

Although in many cases a single moot may suffice, it is always preferable to leave adequate time for a second moot if possible. This leaves students time to regroup before final preparation. If necessary, leave time for a series of moots.

If you are mooting your students for real-life court experience, schedule the moot with someone playing the judge before whom the student is to appear. Mooting for federal appellate arguments has provided me a terrific opportunity to involve my colleagues.

Moots should be as real as possible as the event progresses. An early moot might be designed to be longer than the expected argument. Students should train specifically for the event by honoring strict time constraints and the smallest logistical matters -- podium height, room lighting, how to dress, and the management of documents.

Trips to the exact forum or courtroom can ease the student's nerves. When students know where to put their Kleenex and their glass of water, and where to find the bathroom, they are apt to be better prepared to handle the inevitable stress and, thus, be in a better position to learn from the experience.

3. The supervisor should attend all moots

I have found that most "judges" who take time to do a moot are eager to offer the student feedback and advice. It is disconcerting for students to hear contradictory advice, or to change their style after an initial moot only to be advised later that their initial style was preferable. The supervisor, by attending all moots and by taking careful notes, can help the student sort out contradictory feedback.

4. Try the lecture-in-disguise moot

Use the moot as a "lecture in disguise." For instance, if the student and the supervisor have discussed the way in which a procedural point jeopardizes a substantive point of the argument, the supervisor can organize this moot to show through judicial argument the necessary links between those two points.

5. Try the "workings of the judicial mind" moot

Arrange for a judge to explore with students how an argument can affect the judge's sense of how to decide a case. For instance, a judge could ask, "If I rule with you on Part A, doesn't that mean that I have to rule against you on Part B?" In this way, students can track how their arguments might affect one practical judicial thinker. It will also help students get away from the abstract issues in the case and realize that certain judges will always be focused on the decision at hand.

6. Try the moot of complete silence

As students deliver their spiel, simply remain silent. This teaches students the importance of being prepared to meet a judge's stony gaze, of how to keep the floor when it is given to them, and of how to figure out a way to make a lively, useful presentation.

7. Try the worst-case scenario moot

After divulging their most fearful scenarios, students must then act them out. This moot invariably goes better than the student expects. It typically gives students new confidence. In the rare case, the supervisor and student may reconsider whether the student can handle the case event; in such situations, the supervisor and student may decide that the supervisor should handle the actual event.

8. Consider the reverse moot

It often is useful for students to moot their supervisor. Seeing the supervisor argue the case may provide students some useful ideas. Students can also use this as an opportunity to ask the supervisor difficult questions and have the supervisor help work out possible answers. Putting the student in the position of a judge also increases the student's empathy with the decision-maker. Doing a reverse moot also helps express solidarity with the students (as well as helping supervisors work through their own latent desires to do the argument themselves!).

9. Help the student design the best written instrument

As the moots progress, students will increasingly refine their written aids. Some students prefer voluminous outlines; some might prefer to go with no notes at all. In my experience, using a single-page crib sheet is an important complement to other student aids. The crib sheet should contain the argument in brief and the theory of the case, and it should pinpoint citations to key documents.

10. Don't forget the principle of the 30-percent jump

Because of the adrenaline flowing during the actual event, most students and clients improve on their best moot performance by a substantial margin. Knowledge of this may soothe the nerves of jangled supervisors and students during the inevitable lowest moment.

It is common to follow an excellent moot or an excellent first attempt with a dismally bad second attempt, but supervisors can avoid conveying an air of panic by remembering that students, through experience and applied practice, perform significantly better in real-life situations.