Open or Shut?: A Case for a Better Mooting Program

Graeme Oddy (3L)

In March 2015, the Moot Court Committee (MCC) published a thoughtful article, “Advocacy for U of T’s Moot Program,” which highlighted issues with the current mooting program. The MCC’s three primary concerns were that: (1) too many students entered the moot selection process with no experience or concept of what was expected; (2) the Upper Year Moot was inadequate and unvalued; and (3) mooting experiences were offered to too few students. The article made a number of suggestions intended to remedy these issues.

In March 2016, the then MCC published a follow-up article which lacked the honesty and introspection of the original.  The article began by focusing on the whopping thirty-three awards and victories that U of T Law had racked up, and concluded that such accolades indicated the mooting program’s success. The MCC wrote that “after allowing these victories to sink in,” they turned their minds to the question of how to make the competitive mooting program accessible to as many students as possible. Yet they did not mention any changes they had made themselves, nor did they address any of the previous MCC’s suggestions for improving accessibility. Their own recommendations for the future were mostly left to the Faculty to take care of.

A perspective which focuses first on the awards our mooting program earns, and treats the question of accessibility as secondary, will never result in a better and more accessible mooting program. The goal of winning as many awards as possible makes mooting less accessible.

The major barrier created by the goal of winning awards is that the system is designed to advantage those with prior mooting experience. This problem is exacerbated by failing to limit the number of times that students are allowed to moot.

Goals of the MCC

The MCC states that their goals are to give students a valuable learning opportunity and to organize the logistics of tryouts and coaching. In their words, “the MCC also seeks to provide the best possible mooting experience for the greatest number of students.”

This year’s MCC has taken steps to achieve this goal. They distributed an information package before tryouts which laid out the expectations and process. They also distributed a score sheet template so students would know how they would be graded. For the first time, they held a practice tryout and provided feedback, enabling hopefuls to get hands-on experience with the process.

The MCC continues to facilitate the 1L Trial Advocacy program and is also working to create new mooting opportunities. Additionally, they suggested a program that would allow 1Ls to conduct research and get exposure to the upper-year competitive mooting process, though this was ultimately rejected by the Faculty. In light of that, the MCC is now looking into “more substantive mooting opportunities for 1Ls.”

The MCC has demonstrated that it is working to increase accessibility and participation; its focus is not on merely winning moots.

Diffuse the Opportunities

Despite these initiatives, the practice of giving multiple mooting opportunities to the same individuals still stands as a barrier to providing the competitive mooting experience to the greatest number of students. The MCC does not take previous participation in competitive mooting into account when making their selections. As long as there are more people trying out than open spots, selecting someone who has already participated in a competitive moot takes away an opportunity for a student without prior experience.

Research into past competitive moot participants reveals that at least forty-eight students competed in two or more moots since 2013. At least thirteen students competed in three or more (notably, all four members of this year’s Grand Moot are in this category).  During his time at U of T, Samuel Greene was selected four times—competing in the Baby Gale, the Grand Moot, the Gale, and the Arnup. His story is even more extraordinary because his victories in the Gale and the Arnup earned him the chance to compete again in the Commonwealth and the Sopinka. In total, Samuel Greene had the opportunity to moot in six distinct competitions. Zachary Al-Khatib will also have competed in at least four moots by next Marchthe Baby Gale, the Callaghan, the Grand Moot, and the Gale. If he wins in the Gale, he will go on to compete a fifth time in the Commonwealth Cup.

That’s at least eighty opportunities that have been filled by previous mooters, according to data gathered. If the MCC had limited mooters to a single moot for the four-year period I looked at, an average of twenty additional spots per year would have been open to students. This policy would have increased total participation by around 30%.

That said, I am not suggesting that the MCC limit people to a single moot. A more reasonable suggestion is to limit students to two competitive moots as long as there are others without prior experience vying for the same positions. This wouldn’t prevent involvement in any moot, and students do not need an upper-year moot to qualify for the Grand Moot. This guideline would increase participation numbers by an average of 12% at least seven students per year.

There are many arguments against such a guideline: it creates more work for the MCC, requires the consideration of personal information (like mooting history), and limits our most talented individuals. And it might even mean we win fewer awards. It’s no easy choice. As one student said to me, we want people to participate, but we also want to send our most passionate and skilled mooters to represent the school. Mooters who have already honed their craft are well-deserving of opportunities for glory.

That’s true. But the less-experienced individuals deserve something as well. Right now, we’re leaving too many people behind.  

Accessibility and inclusion are important. Are students really going to be so upset if they can compete only twice? Does getting to compete only twice feel worse than not getting to compete at all?

The Faculty versus the MCC

The Faculty does not provide us with very many chances to develop our advocacy skills. Less than one in six upper year students gets a chance at competitive advocacy.

Let’s take a look at some of the other law schools in Ontario. The Western law program offers a total of twenty-two competitions. Queen’s has twenty. Windsor offers eighteen. The Osgoode Law mooting program, conceivably U of T’s greatest rival, offers a total of twenty-five mooting and skills competitions. An impressive four of these are available to 1L students, and eleven of these are full upper-year moots (for example, the Gale and the Jessup).

U of T offers only eighteen competitions total, with just one for 1Ls.

Thank goodness we win moots for the Faculty, because I’m not sure how else they’re selling our advocacy program. The total number of competitive mooting opportunities is not reflective of the law school’s prestigious reputation and is incongruous with our tuition. The Faculty is letting us down as far as the raw number of mooting opportunities goes and they shut down the MCC’s most recent initiative to create more.

The answer isn’t the upper-year moot, at least in its current configuration. Plenty has already been said about the failures of the upper-year moot. Put concisely, this program is typically either a consolation for those who didn’t get a competitive moot, or a perfunctory exercise completed with minimal effort by those who don’t care about oral advocacy. It is not valued by the Faculty and it does not provide much in the way of student development.

It would be ideal for us to introduce five extra competitions, a revamped upper-year moot, and another first-year mooting experience. But this will not happen overnight. In the meantime, the MCC has to do its best to improve accessibility; they can’t wait for the Faculty to deliver.

The only evidence we have of Faculty attention is when they announce our victories over other law schools. Since repeat mooting is linked with success, a policy that limits the number of moots each student can participate in might compromise the number of awards in which the Faculty can vicariously take pride.

Some have suggested that since the Faculty hasn’t implemented any policy regarding the number of moots in which a  given individual can participate, it has implicitly signalled that students should be permitted to moot multiple times. It was further suggested that, as a student group, it would be inappropriate for the MCC to craft a policy that ran contrary to the Faculty’s wishes.

But studentsones who don’t get any opportunities to competedo have an interest in such a policy or guideline. Even if the Faculty has signalled their wishes for students to moot multiple times, the MCC has stated that they are there for the benefit of the student experience. They don’t exist to please the school. The MCC, like any other student group, is entitled to advocate for the student body and challenge the Faculty when needed.

A Time for Change

Previous Ultra Vires articles have acknowledged that the tryouts made many of us feel worthless. They’ve also noted that we have to compete for everything in law school, and that we’re too often reminded that we aren’t good enough.

It’s impossible as things stand now to give everyone a competitive moot, but the MCC has an opportunity to stand out from the paradigm of law school if they’re willing to seize it. Select some people who aren’t already the best. Show that you believe that three extra students getting the opportunity to moot at least once is more valuable than a single person having that opportunity four times. Do what you reasonably can to make fewer people feel like failures. The student body will greatly appreciate these efforts.

If the MCC’s genuine goal is to provide a mooting experience to the greatest number of students, then something needs to change.