The “ins” and “outs” of mooting
The “ins” and “outs” of mooting that students often encounter at our Faculty do not refer to a skill-set, but rather, the distinct impression that some peers are privy to a process and opportunities that others are not.
We experienced this firsthand when trying out for the Grand Moot last year. Despite having won mooting awards before, we hesitated to try out. We felt that we did not belong to a small circle of insiders already many steps ahead of us.
To our knowledge, at least one complaint was made to the Moot Court Committee (MCC) about the fact that past Grand Mooters were conducting run-throughs with close friends. Because tryouts use the previous year’s Grand Moot problem and facta, a material advantage may arise from such assistance. At a minimum, many reasonably perceived that the 2022 Grand Moot spots had been pseudo-reserved for certain insiders.
Although we succeeded in the tryout, perceptions of bias can be a strong deterrent. Other “outsiders” could well have made the Grand Moot if they were not overly stressed during tryouts or deterred from signing up altogether.
As one of 12 bench clerks who worked on the 2021 Grand Moot problem, I (Ivy) attended the first practice for the moot and formatted half of the bench memorandum. Several students who I (Adrianna) spoke with indicated they felt it was unfair that former bench clerks were able to try out for the Grand Moot based on a moot problem they helped to formulate. While becoming a bench clerk is certainly more accessible than forging upper-year connections, not all students have the capacity to do so the year prior to the Grand Moot they wish to try out for. For transfer students, the opportunity is entirely unavailable.
Even with my (Ivy’s) experience as a bench clerk, I felt at a disadvantage for tryouts because I was not close in a personal capacity with any former Grand Mooters. Other 2022 Grand Moot candidates used their friendships to prepare for tryouts, including editing a factum for the 2021 Grand Moot, attending practice sessions with 2021 Grand Mooters that were not open to other students, and partaking in multiple run-throughs with the 2021 Grand Mooters. So, out of a feeling of necessity, I (Ivy) reached out to a former Grand Mooter in a networking capacity and did one run-through with them to prepare for my tryout.
The amount of help candidates receive lies on a spectrum. We do not suggest that any of the 2022 Grand Mooters achieved their spot through means other than merit. However, I (Ivy) am comfortable saying there is a chance that I would not have gotten my spot without the help I had, and I believe the same applies to everyone else who had help. A simple solution would be to no longer use the previous year’s moot problem for tryouts.
Ultimately, mooting is a microcosm of the broader legal industry—and itself a “tryout” for a career in litigation. A few years ago, Hadiya Roderique published her account of being a black woman from an immigrant family while working on Bay Street. A culture of operating in cliques and the perception of bias in mooting only deepens these inequities well-known in the industry.
At my (Ivy’s) very first moot, a practitioner judge’s first piece of feedback to me was “you have a very strong voice for a small figure.” The competition was over Zoom, and he could only see from my shoulders up. Having experienced primarily microaggressions so far, I am luckier than many students of colour doing moots. It is a well-shared sentiment that we often feel judged more harshly than our peers. This creates the fear of speaking out and discourages many from choosing litigation as a career.
An important metric for evaluating U of T’s mooting program used to be gender parity. This acknowledged the phenomenon of self-selecting out of moot participation. Such acknowledgement does not seem to extend to other areas of equity. Last year, after the Grand Moot tryout schedule was released, my (Ivy’s) friends’ wishes of “good luck” often came with the observation that I was the only woman of colour on the list of candidates. Partly because of this, I felt more nervous in my tryout than in the actual moot.
While many disadvantages pre-date law school, no change comes from downplaying the possibility of alleviating some of them. When we brought up the struggles of those without undergraduate mooting experience to the MCC over a Zoom call, the MCC said that there is not much more they could do. Two members analogized the situation to people with an accounting background having an advantage in an income tax course.
Some do not consider disparities in prior mooting experience and connections to be an issue at all: it is open to students to use the connections they have, regardless of how they made them and even if other students lack them. As two students who are the first in our families to attend law school, we are familiar with this argument in its many forms. It is not sufficient.
We do not aim to craft detailed proposals here, since those in charge of moot programming are in a much better position to do that. But a starting place is improving mooting resources and mentorship to 1Ls. There is a steep improvement curve when you first start mooting. Even a short run-through with an upper-year student can dramatically improve a new mooter’s performance.
I (Adrianna) still remember my 1L tryout experience. Although I have always been a confident public speaker, I was so nervous when pelted with questions that (to the great surprise of the judges) I finished two minutes early. I was afforded an opportunity to do the Stewart Cup and went on to win. In part, the improvement I experienced came from the simple tip from my coach that I was allowed to adjust the order in which I addressed points.
For many 1L tryout participants, the instruction sheet with mooting tips and a presentation from the MCC are the only resources they have. When we were in 1L (two years ago), the MCC arranged for alumni mooters to do run-throughs with tryout participants; everyone could sign up for a 10-minute session. Although available for the upper-year tryouts, this kind of opportunity was not available for 1Ls this year or last year.
In our 1L year, we were told that the Stewart Cup selection was by lottery. It is not clear whether the selection method was changed at some point or, as alluded to by the current MCC, had been based on scoring all along. Either way, all 1L opportunities are now based on “merit.” This means that those 1Ls who have the least experience and need the most assistance are precisely the ones who will not receive it.
The MCC’s modifications of the rules for the Grand Moot tryouts this year are a promising move forward. The materials for the tryouts are being released earlier. Traditionally, materials have only been released a few days in advance and usually over a weekend. These time constraints posed a barrier for those with other responsibilities, such as childcare, and were the reason that I (Adrianna) was unable to participate in tryouts in 2L. Importantly, former Grand Mooters are no longer allowed to assist those trying out with run-throughs.
The purpose of this article is to address systemic and cultural problems in mooting. Unfortunately, in our experience, there will always be individuals who perceive criticism of a system and a call for equity as a threat to their own accomplishments. As we have had success in mooting, we feel that not only are we in a unique position to confront this issue of exclusivity, but we have a responsibility to do so.
We have both spoken to students before and after the publication of this article in print who felt deterred from trying out for a moot of their choice, or from participating in the mooting program altogether. Yet, we too have felt like outsiders to a closed system at some point in our mooting experiences. At the same time, we were not wholly deterred. We acknowledge our own advantages in partaking in moots, whether that be Ivy’s networking and bench clerk experience, or Adrianna’s inherent privilege of participating in an exercise that favours white students.
In turn, we call on others who have succeeded in mooting to do the same. We encourage everyone to consider their own role, whether it is contributing to the problems, bearing the negative effects of it, or somewhere in between. Only then can we have productive conversations about how to tackle the systemic problems in mooting.
Editor’s Note: The online version of this article has been edited to provide additional context.
The MCC provided the following comment in response to the print version of this article.
“The MCC is committed to making mooting accessible to all students. The MCC makes an effort to give tryout participants all the resources they need to succeed, such as hosting information sessions, providing tutorials on how to structure their submissions, and providing videos of past Grand Moots. This year, we also arranged alumni practice sessions and a tryout buddy system for the Upper Year Competitive Moot tryouts. We will be seeking applications for next year’s MCC soon—we encourage those that are passionate about this issue to apply!”
