Is the traditional oral advocacy system really the answer?
The dreaded moot. I was anxious about U of T Law’s mooting requirement even before I decided that I was going to attend the school. As someone who is not necessarily exhilarated at the thought of appellate litigation, a competitive moot was definitely not in my plan. So, I took what I had to: the Upper Year Moot (“UYM”) course.
Now, don’t get me wrong. I did the UYM and it really wasn’t as bad as I was making it out to be in my head. It’s a one-credit, pass-fail course, so the stakes were low enough that I was able to keep talking myself out of any nerves I felt leading up to the in-person mock trial. I even had some fun thanks to the fact that I had a great partner and an interesting fact pattern to work with.
However, I still felt some lingering upset about the whole process; it wasn’t about the oral advocacy itself but about the lack of options available to fulfill the requirement. Evidently, I understand the need for an oral advocacy requirement. I am personally still interested in oral advocacy, and I know I will likely litigate during my legal career. But what about students who don’t wish to pursue litigation, or are not interested in appellate litigation specifically? What other options could the school have for people seeking different methods of oral advocacy that they are either more comfortable with or about which they are more passionate?
I asked Associate Dean, JD Program Christopher Essert whether there could be other opportunities outside a competitive moot or the UYM that would satisfy an oral advocacy credit. He responded that every student must engage “in at least one instance of sustained, substantive, oral argument, where the oral argument is also based on legal research and the production of an associated piece of written legal advocacy.”
So, could other courses already offered at the law school count towards our oral advocacy requirement? When I brought up the idea of Trial Advocacy or Negotiation potentially fulfilling these criteria, Associate Dean Essert wrote that the Faculty is not closed to the possibility that other courses could meet the oral advocacy framework, but as of right now, those courses do not fulfill the requirements.
I think those courses could definitely meet the oral advocacy goals, if not already, then with some minor additions to the course curriculum. For transparency’s sake, I have not taken Trial Advocacy (although I did play a witness for the final trial) or Negotiation, but I have had many conversations with peers who did take those classes. In many cases, they mentioned how the courses facilitated the development of important oral advocacy skills.
In Trial Advocacy, students must participate in workshops with practicing lawyers where they enact scenarios involving oral advocacy, such as cross-examinations and opening statements. And, of course, they must participate in a full, in-person mock trial at the courthouse. There is no legal research involved, but it could be incorporated into the pre-trial motions for issues such as evidence or procedure. In Negotiation, students are given fact patterns and have to negotiate one side in order to get the best result. While I admit that there’s not much legal research and no written legal advocacy involved per se, I don’t see why an element can’t be added that requires a written brief or statement of fact.
These are just two examples of courses, but there are and can be many more. The University of Ottawa Faculty of Law’s Common Law Section allows for a wide range of courses that can satisfy the students’ oral advocacy requirement. These courses are listed in their online catalogue and include courses such as Mediation Theory and Practice, Dispute Resolution, Interviewing and Counselling, and various clinic courses; it also includes Trial Advocacy and Negotiation.
On the topic of clinics, I also asked Associate Dean Essert whether doing oral advocacy at a clinic externship, such as Downtown Legal Services, could satisfy the requirement. While he could not answer the question in the abstract, he said the Faculty could be open to having a conversation about it with a student, the clinic staff, and others involved. However, this would have to be a case-by-case assessment.
One final point is that there are other competitive oral advocacy competitions that don’t count towards our oral advocacy requirement, but perhaps should. Do external competitions such as the Hicks Morley Labour Moot or the Hockey Arbitration Competition of Canada (HACC) meet the oral advocacy criteria? It seems that at least the Hicks Morley does, as it involves legal research, writing, and the presentation of oral arguments. HACC is sport-focused and caters to the agency side of arbitration. Although it does include aspects of labour law and salary negotiation, I can recognize that this type of arbitration might fall just outside the criteria despite the rigorous research and oral advocacy skills that go into it.
Given all this, why are our oral advocacy courses so limited? If we believe our student body to have diverse interests in future career paths, why restrict our course options for such a vital component of our legal education? Yes, we can participate in these courses regardless of them meeting our oral advocacy requirement. Yet, many students may not have the time or energy to be able to take on additional extracurricular activities, or may feel that they should forgo taking Trial Advocacy since they have to do a moot anyway. And for some, being able to take something that’s not a formal moot might take some pressure off of the requirement and allow them to pursue an alternative avenue of oral advocacy that they enjoy or can envision being more beneficial to their career goals.
On the bright side, the Faculty appears to be open to the idea of broadening the opportunities for courses or competitions that complete the oral advocacy requisite. There is obviously incredible value in allowing students to develop their oral advocacy. I don’t think that value is lessened in any way by recognizing the wide variety of ways in which lawyers advocate outside of fake moot settings.
