Advocacy for U of T’s Moot Program

By Kathleen Elhatton-Lake (3L) and Danny Urquhart (3L)

Photos by Nadio Guo (3L)

This has been one of the most successful years in the history of mooting at U of T Law. This does not mean the program is perfect. At its core, the mooting program is about making people better, more talented and more experienced than when they got here. We’d like to share the story of one of your peers:

“The mooting program is great for the 20-30 people involved. It totally fails the rest of the UofT students. I went to UofT dreaming of mooting, I volunteered, and helped at Grand Moots and I was so excited to participate. The mooting program has been the single most disappointing thing in my educational experience at UofT. If you do not have a debating background/equivalent + mooting friends in upper year you have no chance of participating in the mooting program. The upper year moot is a joke. This probably sounds bitter and it is. I was devastated at the lack of training and support for those without public speaking backgrounds.”

Most people’s mooting experience at this school seems to fall into one of three categories:

First we have Tom. Tom has never done much public speaking. He really wanted to moot. He tried out for the Baby Gale, but he didn’t make the team. In his try-out he wasn’t even aware that the judges would interrupt him with questions. In second year he tried out again, but didn’t make a moot. He did the upper year moot and hated it.

Next we have Dick. Dick benefited from a debate program at a prestigious private high school. He continued to debate in undergrad. In preparing for his Baby Gale try-out he was counseled by Gale, Corp/Sec and Grand Mooters whom he knew through debate. He made the team. He was excellently coached. He went on to do the Wilson and Grand Moots.

Finally we have Jane. Jane didn’t try out for the Baby Gale. She did upper year try-outs in second year. She read straight from the factum. Jane made one of her less preferred moots, but went on to win an oralist award. She coached in 3L which occupied most of her free time. Her faculty advisor didn’t respond to her emails.

These three characters illustrate the following problems with the mooting program:

1. There are not enough mooting opportunities;
2. The mandatory upper year moot is inadequate;
3. The program relies too heavily on students;
4. There is no clear communication between mooters, coaches and faculty of expectations; and
5. There is not enough transparency in selections.

To address these problems, we have the following recommendations.

Get rid of the upper year moot and introduce a mooting component to LRW

There is near uniform agreement that the mandatory upper year moot is terrible. It serves only a formal and not a pedagogical purpose. Responders to our survey had this to say about the upper year moot:

• “this program is viewed as a poor second choice to the competitive moot program and is not valued by the administration or anyone participating in it.”
• “[it was] such an awful experience that it turned me off the entire mooting program.”
• “make the upper year moot something worth doing and not a huge waste of time.”
• “pathetic.”

Students’ educational experience would be significantly enriched by moving the mandatory mooting requirement to 1L.

A mandatory 1L moot would easily fit into the current curriculum. It can be made part of the LRW class. The moot can be scored and these scores can be used to help select the Baby Gale team. This creates an incentive to do well if you want to moot, but there is minimal pressure if you have no interest in mooting. Osgoode already runs a mandatory 1L moot without hassle despite a much larger 1L class.

Moving the mooting requirement to 1L solves many of the identified problems with the mooting program:

• It evens the playing field by equipping everyone with basic mooting skills before tryouts.
• It exposes students to mooting who may otherwise never be involved. Some don’t realize they like mooting until it is too late to meaningfully participate.
• Students will be more engaged in 1L than they are as 3Ls.
• More than just the 20 Baby Galers will get mooting experience.
• Students will get better feedback. Volunteers and students will contribute more when there are stakes.

If We Keep the Upper Year Moot, We Need to Make it Better

There are a number of simple ways the Upper Year Moot can be made better:

• Students need to be given more guidance on factum writing. Many people in our survey indicated they were not given any instruction on how to write a factum. Example factums concerned different areas of law from what was being argued. More factum examples should be readily available, including a selection of winning facta from competitive moots.
• Students need to be given guidance on oral submissions. Competitive mooters typically enjoy eight or more run-throughs. We’ve been told that many people hadn’t done a single run-through in the upper year moot. We do not think it is unreasonable for moot advisors to spend an hour doing at least one run-through. If run-throughs are unfeasible, students should at least be given template oral submission notes and videos of good oral submissions.
• Competitive mooters should be invited to contribute to the upper year competitive moot. Students like being recognized in front of their peers and should be willing to speak about what they did in preparation for their moots.

We Need Expectations to be Better Communicated

Clear expectations are not set out for mooters, student coaches, and faculty advisors.

Mooters often do not know course requirements. Moots do not have syllabuses. Most mooters were never informed of what they needed to do in order to obtain graded credit. This year mixed and inconsistent signals were given by the Moot Court Committee, the Dean’s Office, and course descriptions about what courses were prerequisites for moots.

Student coaches are heavily relied on at U of T and they receive no instruction. Coaches as well are not given direction. The Moot Court Committee needs to distribute a check list of things student coaches are expected to do. One of the best suggestions we got from the survey was to have:

“a handout–like a syllabus you might get from a class you’re taking–with expectations and goals for mooters and coaches alike”

Moot coaches are supposed to be handed a transition memo to serve this role, but these do not appear to be in use. We recommend a sheet of instructions for each moot which sets out expectations of coaches. These instructions should include a requirement that coaches create a schedule of run-throughs factum deadlines to be provided to mooters and faculty advisors.

We need to clarify what to expect of faculty advisors. According to Assistant Dean Faherty, faculty advisors are told they need to contribute a minimum of six hours. Six hours as a minimum commitment is reasonable. We should really expect closer to ten. Six hours is at least enough for two run-throughs and one thorough factum edit. Faculty advisors should be instructed to do exactly those things. Student coaches should be instructed to expect, and ask for, those exact things: two run-throughs and a factum edit.

Criticism is rarely communicated to the administration. We’ve received a wide array of unprompted comments on faculty advisors. Here’s a sampling:

• “Find prof advisors who are actually interested in supporting a team through the entire mooting process”
• “There was no real preparation or coaching for what the oral part of the moot would be like. Our supervisor told my partner and I that as long as we handed something in we would pass.”
• “Our supervisor was a really nice individual but he had absolutely no experience with the particular area of law we chose. He also provided zero guidance regarding how to turn our factum into an oral argument.”
• “We would have benefitted from a designated faculty coach. We were lucky that our student coaches arranged run throughs with professors, but it would have been amazing to get feedback on the substantive law without needing to hunt down profs ourselves.”

There needs to be a review mechanism for faculty advisors and supervisors. Though feedback is solicited during alternate years, this feedback is not anonymous. The upper year moot and the competitive moots need to have the same course evaluations that courses have. Students understandably have a hard time presenting their concerns face-to-face with faculty advisors or the administration.

We Need More Faculty Support

U of T, more-so than any other school, relies on students to run the mooting program. Most schools do not have a Moot Court Committee because that work is done by paid university employees. Most other schools also have much greater faculty coaching.

Student coaches are excellent at advising on moot style, tactics, and whether an argument has been made persuasively. Student coaches are much less competent on suggesting arguments, research strategies or advising on the law. This is where faculty involvement is essential. Professors, even without deep reflection or particular knowledge, are better at helping mooters construct arguments than student coaches.

There are some faculty members who provide AMAZING support for the mooting program, but this is the exception and not the rule. Individual practicing lawyers often invest more hours into helping mooters than professors at this law school. We acknowledge that faculty members’ contribution is gratuitous. We also think that the academic profession necessarily involves contributing to the educational environment at the law school. It should be an expectation and not a privilege that a faculty member read mooters’ factums, make substantive recommendations, assist with try-outs and conduct run-throughs.

We are told that many professors feel they can’t contribute to the mooting program because they don’t have public speaking backgrounds. This is wholly misguided. We do not expect professors to advise on style. We expect them to advise on the law. No one is better positioned to assist students on contentious and novel developments in the law than those who study it as a profession.

We need more transparency

The largest hindrance to fair and effective try-outs is the lack of transparency in how try-outs are judged. It’s time to pull back the curtain. Three suggestions:

First, the MCC should make try-out judging sheets available to anyone who wants them. It makes sense to not make try-out scores widely publicized. It does not make sense to withhold this information from individual mooters themselves. If a mooter wants to know their rank and see their score sheets they should be able to. Allowing mooters to see score sheets helps discipline judges and it gives mooters some insight into what they need to work on. At the very least, the scoring sheet template should be available so mooters can see the criteria they are being judged on.

Second, try-out examples should be taped and made available. It is obvious which mooters are ‘insiders’ to the process. Some come in to the try-out with much more knowledge of what to expect. That is a serious inequality which distorts try-out performances.

Third, judges need to communicate what they liked and didn’t like for future mooters. Either invite former judges to the info session at the beginning of the year to explain what they look for, or have them write short memos on what they liked and didn’t like which can be passed along.

Fourth, more professors need to be involved. Our survey showed us that many people view mooting as an insiders game which is dominated by certain social circles. As it stands, typically one of six judges will be a faculty member. We really need more professors involved in order maintain the integrity of the try-out. In most other law schools the try-outs are 100% faculty run. At U of T, the Moot Court Committee struggles every year to find professors willing to judge competitive moot tryouts.

We Need Some Basic Resources

Embarrassingly, podiums are a scarce commodity. We were constantly fighting with Falconer staff over podiums during upper year try-outs. We do have one spare podium. The reality is that we need at least another. Mooters have been using overturned laundry baskets and garbage bins. Much like writing an exam without table space, mooting without a podium effects performance and should never have to be contemplated.

In our time occupying Victoria College, booking rooms for run-throughs has been difficult. In the old building there was a moot complex dedicated to the moot program. Room-booking is frequently impossible at high-demand times or on short notice—even where space is available. The administration should dedicate a room to the moot program during certain hours over mooting season. A paper calendar on the door or a shared google calendar between coaches could be used to schedule use.

Conclusion

We are thankful to those who responded to our survey which allowed us to look at the good, the bad and the ugly of your U of T mooting experiences. The Mooting program at U of T law benefits from some of the greatest talent in the country. Years like 2015 should be the norm and not the exception. Our mooting program has a number of flaws which prevent this from happening. We don’t develop talent. We don’t take advantage of our faculty. We leave too much to the individual initiative of student coaches whom we don’t prepare. It is our hope that some of these things will change.