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Wolski --- "Beyond mooting: designing an advocacy, ethics and values matrix for the law school curriculum" [2010] LegEdDig 40; (2010) 18(3) Legal Education Digest 31

Beyond mooting: designing an advocacy, ethics and values matrix for the law school curriculum

B Wolski

Legal Education Review, Vol 19, No. 1, 2009, pp 41–82.

What then is a moot? It is ‘a specific form of simulation’, one which enables students to practice and develop a range of skills (although, as will be argued shortly, the objectives of mooting need not be limited to the development of skills) by performing them rather than just learning about them. The skills which feature most prominently in mooting, and which are interrelated, are those most commonly associated with advocacy: problem-solving; legal analysis and reasoning; legal research; written and oral communication; teamwork; time management; and strategy.

It is submitted that mooting (and other experiential exercises) can be used to teach not only skills and law, but also values and ethics. Arguably, moots are not being used to achieve this objective at the present time.

The way in which we integrate moots into the curriculum is also important – some ways of integrating moots and other simulations are better than others for achieving their objectives.

Students should be exposed to, and given opportunity to question, broader issues of professional responsibility such as those pertaining to: (1) the advocate’s role in the legal system and in society; (2) the issue of who, in the lawyer–client relationship, chooses which issues to run and which to ignore; 3) the question of whether or not an advocate needs to believe that justice is on the client’s side; and (4) whether or not a court is the appropriate forum to resolve the matter at hand.

We also have an obligation to impart to our students a critical understanding of personal and professional values.

It is important for students to appreciate the potential for conflict between competing values and the possibilities for dealing with it. They must also ‘engage their feelings’, and come to understand ‘how ethics are undermined’ by time and peer pressures, stress, competition and personal values, such as loyalty to an employer and employment security.

An incremental approach allows time for the development and acquisition of skills ‘gradually by practice’. Ideally, students are introduced to a range of skills early in their studies and given multiple opportunities to practice those skills in increasingly complex situations as they progress through their degree.

Similarly, ethics and values should be taught ‘pervasively and continuously’ and incrementally across the law curriculum. Additionally, if we teach legal ethics in context, we give students ‘a more realistic picture of how ethical issues arise and are addressed in legal practice’ and assist them to see the relevance of ethical issues.

Financial constraints impact the ability of many schools to offer clinic courses, and therefore our best hope for the future rests with simulations and other experiential learning activities. It is essential then that we use them effectively.

A sequence of activities appropriate for teaching skills and relevant ethics and values, commencing at the abstract conceptualisation stage, is as follows. (1) Preparing for experience: before practicing a skill, students receive instruction in the theory relating to the skill. (2) Providing substitute experiences with simulations: students are given the opportunity to practice the skill in simulations and other experiential exercises. (3) Reviewing and reflecting on experience through assessment and feedback: student performance is then formatively assessed. (4) Providing opportunity for further practice in subsequent assessment activities: students are then provided with the opportunity to test new ideas and to transfer their learning to new situations, with further practice.

Simulations are an integral part of experiential learning. They can stimulate a deep approach to the learning of law in both its theoretical and practical dimensions. They can encourage students to take responsibility for their own learning, fostering skills needed for the transfer of learning and for lifelong learning. They can enhance student motivation to learn, providing them ‘with a sense of the relevance of their law school training to what they will be doing as lawyers’. Simulations can also provide a realistic (but controlled) context for students to explore the relationship between lawyer and client, to experience the ethical dimensions of practice, and to consider issues of professional responsibility.

However, the potential educational value of simulations can only be fully realised if the following conditions are met: (1) Simulations should ‘replicate actual practice’ or ‘approximate reality’; (2) Simulations should be perceived by students to be relevant, meaningful and interesting; (3) The tasks that are set for students should be achievable in the sense that students have ‘a reasonable expectation of success’; and (4) Students should be required to undertake practice in different settings and on varied topics.

In their current form, moots may fail to meet these conditions.

It is submitted that many of the assumptions underlying the reasons why law schools use appellate moots are flawed.

It can be a mistake to assume that students have a familiarity with appellate procedure, especially in the first year of their law degree program.

The facts have been funneled at appellate level. This limited and sterile treatment of facts can have several consequences. It may: (1) give students the impression that facts in real life are defined, concrete and knowable rather than uncertain, slippery and complex; (2) encourage students to take a narrow view of the relevance of facts in the operation and practice of the law; and (3) give students little opportunity to sort relevant facts from the irrelevant; to identify facts that are ‘missing’; to collect and construct facts, and to select and organise them. These are all critical skills for lawyers and should be nurtured and developed.

There are several advocacy contexts in which contradiction and uncertainty in facts can easily be introduced, without having to go into the practical difficulties involved in a trial – for example, pleas in mitigation of penalty and interlocutory applications.

One of the benefits claimed for mooting (and, in particular, for appellate mooting) is that it allows students to develop skills of legal reasoning, analysis and writing. However, several features of the traditional moot format may unnecessarily limit the opportunity students have to develop these skills sets.

Students are rarely required to identify and formulate the grounds of appeal themselves. Students are less likely to focus on ‘errors’ and the error-correcting function of appellate courts, when they are not charged with the task of identifying errors. Students are also less likely to go back to the judgment and to distil the reasoning used by the judge. In short, they are less likely to see how and why the judge got the decision right or wrong.

Kozinski claims that moot court teaches ‘students the wrong lesson that policy, not law, plays the key role in arguments in most of the courts where they will appear’. Students in the moot program at Bond University Law School experienced the same problems. Their focus was not on case analysis but on floodgates and appeals to justice writ large.

The written aspect of advocacy is often down-played for its oral component.

We discovered a range of common errors in written ‘Summaries of Argument’ in the Bond University moot program, including incomplete or superficial coverage of issues, absence of, or incorrect, statements of legal principle, and flawed structure in arguments.

Careful writing of submissions prepares an advocate to deliver a persuasive and convincing argument in court. And today, more so than ever before, written submissions ‘are as much exercises in advocacy as the oral argument. Written submissions are the first, and perhaps the primary, tool of persuasion.

Perhaps the most often-raised criticism about mooting is that the emphasis on appeals does not reflect the reality of practice. Few advocates will undertake appellate work in their early years of practice.

In order to meet the need for realism and relevance, a change in the moot itself is required or other simulations need to be substituted.

All law schools in Australia offer students an opportunity to participate in moot competitions. Competitions may be intra-school, interschool, regional or state, interstate, national and international.

Some of the problems encountered with moots are a product both of the characteristics of the moot and the way in which it is integrated within the law curriculum.

Appellate advocacy is a specialist area of practice demanding mastery of a range of skills. Experience of mooting at Bond University Law School (and literature about mooting in the US) suggests that it is too complex an area of practice for most students to handle well in their first or second semester of study. As mentioned previously, students at Bond University were required to undertake an appellate moot in their first or second semester. At this stage in the degree program, students have not yet had time to acquire a sufficient understanding of legal doctrine, legal process and legal institutions to use the moot effectively as a learning tool.

Students appeared to have little understanding of the hierarchical structure of the court system. Some students had no understanding of the significance or effect of the doctrine of precedent and of the difference between binding and persuasive authority. Nor did students understand basic trial and appeal procedure. Some students did not know which party to a judgment would institute an appeal and what relief that party would seek. On a few occasions, students assumed that the plaintiff in the trial automatically became the appellant on appeal.

Students in the Bond University Law School program showed a number of weaknesses in oral presentation skills.

We observed common errors in teamwork including failure to share the workload equitably, incorrect and inappropriate division of functions (such as in relation to entering appearances, introducing issues and summarising arguments), and failure to divide and deal with relevant issues in a logical and cohesive manner.

Although some students might perceive moots to ‘be fun’, many students report that participation in moots induces feelings of ‘terror’ and ‘fear and stress’ in them. When students are overwhelmed, they are more likely to adopt a surface approach to learning in order to cope. It is unlikely that students will perceive the exercise to be achievable (without high levels of anxiety). ‘Achievability’ is not just about being nice to students; it is a key requirement for effective use of simulations.

Students should be given an opportunity to do an appellate advocacy exercise precisely because it requires the exercise of a range of complex skill sets; however, the later it is introduced in the degree program, the better. Students must first be taught how to perform the basic sub-elements of the tasks involved – skills must be introduced gradually, built, and reinforced over time.

The above concerns about mooting may be addressed through two initiatives. First, some of the traditional moots in the curriculum can be replaced with other simulations that not only better reflect the realities of practice compared with the traditional moot, but which also take full advantage of the benefits of experiential learning. Second, the challenge of integration can be addressed by integrating simulations into the curriculum by way of a matrix ; that is, one which consists of numerous components which are attached to various designated compulsory substantive courses, and which are taught and assessed throughout the law degree program (rather than in a single semester or year) in such a way as to form a single entity.

The suggestions made here are not hypothetical. Bond University Law School introduced a skills, ethics and values matrix in 1997.

In 1997, the Law School at Bond University replaced its mooting program with an advocacy program comprising of five components based on the following simulated tasks: (1) Parliamentary sessions; (2) Pleas in mitigation of penalty; (3) Written appellate argument; (4) Oral appellate argument; and (5) Interlocutory applications.

The first advocacy exercise builds on students’ pre-university experiences – most students have undertaken some oral presentations at school or college. However, many of them are still afraid of public speaking. This exercise is designed to assist students to come to terms with that fear. This goal is best accomplished with an activity in which students can concentrate on improving their oral communication skills ‘unencumbered’ by any legal or procedural complexities. The students’ brief is to persuade ‘parliament’ to their point of view on a controversial topic. The exercise is incorporated into the first year introductory course ‘Contemporary Issues in Law and Society’.

Students have two opportunities to hone their presentation skills. They are required to give two presentations at intervals during the semester. Before their presentations, students are instructed on the role and techniques of persuasion and on principles of effective oral communication, and are required to practise a number of techniques in mini-exercises in lectures.

For the first session, students are given four minutes during a tutorial to prepare a short presentation on one of a number of topics that are provided at the tutorial. Once prepared, students then have three minutes to present their arguments to the class. The second session takes the same format; that is, students are given three minutes to make a persuasive presentation. However, this time they are given a list of topics in advance of the tutorial so that they may prepare thoroughly. After each presentation, students receive feedback from the tutor and their peers. They are also required to evaluate their own performance using a checklist of performance criteria. The aim is to generate a list of three strengths and three areas in which they can improve. Students are required to record feedback in a learning journal and to carry it over from one session to the next (or, in the case of the second session, to the next advocacy component in the program).

Students are introduced to the concepts of ethics and morality in this component of the program. They are required to consider whether or not politicians should lie or stretch the truth, whether the ends achieved ever justify the means used, and to reflect upon whether or not passion and engagement with cause are fundamental to effective advocacy. They must compare the role and perspectives of lay people, politicians and lawyers.

Ultimately, students are assessed on the basis of their improvement between the first and second presentations, on their demonstrated proficiency in a range of oral presentation skills, and on the reflective accounts which they are required to submit to the tutor at the end of the semester. The journal entries are marked and returned to students.

The next component is undertaken in the course criminal law, which most students take in their second semester of study. Students also receive instruction on the procedure for entering a plea and making submissions in mitigation of penalty, on the use of case theory and theme, and on the structure of pleas in mitigation of penalty. Prior to undertaking their first exercise, students are required to attend a real Magistrates’ Court to observe sentencing procedures.

To complete the component, each student must present two ‘submissions in mitigation of penalty’ on behalf of fictitious defendants who plead guilty to one or more criminal offences (usually misdemeanours). The presentations are made at intervals during the semester before a simulated Magistrates’ Court. A period of 10 minutes is set aside for each presentation, allowing five minutes for oral performance and five minutes for feedback. Again, students record feedback in their learning journals – the same journals that they commenced in the first component of the advocacy program. Students have to decide: (1) which prosecution facts, if any, they should dispute and how far they can take the issue before they reach the point where the submission is inconsistent with a guilty plea; and (2) what client information, if any, they should disclose to the court in order to satisfy their duties to the court, to the client, and to the public.

For the first time, students are introduced to and required to critique formal rules of professional conduct. In a group debriefing session, students must complete a ‘true/false’ exercise on ethical matters that arise in relation to ‘guilty pleas’, many of which cannot be satisfactorily answered with either a ‘true’ or ‘false’ response. Our aim is to encourage students to scrutinise relevant ethical rules (such as the cab rank rule), to be aware of and open about their feelings for an accused person, and to explore and articulate values such as those of access to justice, rights of accused persons and rights of victims.

Most students perform very well in this assessment component and their confidence is bolstered as a result.

In the third advocacy component, students are provided with a fictional judgment involving the law of torts and asked to appeal the judgment. Students work alone. They are required to prepare a ‘brief’ of approximately 3000 words consisting of a Notice of Appeal (or Notice of Cross-Appeal if they act for the respondent) and written submissions. Instruction is given on the function of appellate courts, on the different categories of error, on the tests used to determine appealable error, and on the rules of appellate procedure. Students also receive instruction on the content requirements of a Notice of Appeal, with particular emphasis on the requirements for a well-drafted ground of appeal. Of critical importance in this exercise is the students’ ability to: (1) demonstrate an understanding of the function of appellate courts; (2) critically analyse the decision, reasoning and findings of the lower court; (3) articulate grounds of appeal with clarity, precision and specificity; (4) specify the appropriate relief or orders sought by the client; and (5) write in plain and persuasive English. A number of pertinent ethical rules (such as the obligation to disclose to the court all relevant case law and legislation) are discussed in class. Students are made aware of the consequences of misstating the law or the facts, of exaggerating, of quoting passages of law out of context and so on. These rules sound straightforward but, in practice, they are not. At the end of these discussions, students must add to their learning journals.

The next component of the advocacy module is taught in the course Obligations, which is undertaken by students in their fifth or sixth semester of law school. The component is similar to the ‘traditional moot’ in that it includes oral argument at the appellate level. There are two reasons why we have retained one simulation which functions like a traditional moot – first, because our students continue to take part in moot competitions and consequently need exposure to the formalities of the ‘mooting process’; and, second, because appellate advocacy gives students an opportunity to use and bring together a complex set of skills.

Students undertake the fifth and final component of the advocacy program toward the end of the degree in the course, Civil Procedure. Working alone, students must draft an interlocutory application (for example, an application for an injunction or other interim relief), supporting affidavits, and an appropriate draft order for the court. These documents are marked separately from oral presentations. Importantly, students are assessed on their ability to comply with the evidentiary and procedural requirements for applications and affidavits.

Students then present their application to a ‘judge’. Each student has 15 minutes for oral presentation and feedback.

The scenarios always contain some facts which are borderline-adverse to the client and students must decide whether or not to reveal the information to the court. They must justify their decisions by reference to the professional conduct rules or other applicable norms.

There are three major hurdles to the expansion of skills programs relevant to the present discussion: (1) Skills teaching and learning requires a substantial commitment of labour and resources, far more than is required for teaching traditional doctrinal courses; (2) Teachers and students have limited time available to them; and (3) There is a perception that skills teaching interferes with coverage of already content-crowded substantive law courses.

The School of Law at Bond University uses a compulsory model of integration. The components of the advocacy program described above are taught and assessed in designated compulsory substantive law courses taken by students throughout their law degree.

The Law School at Bond University also endeavoured to make skills teaching both incremental and systematic.

Advocacy is but one module in the skills program at Bond University School of Law. Besides Advocacy, there are modules on Legal Research and Analysis, Writing and Drafting, Negotiation and Dispute Resolution, and Client Interviewing and Communication. There are five components in the advocacy module, but altogether there are 20 components in the skills program. The other 15 components are also integrated into substantive law courses taken by students throughout their law degree.

We have created links between the components by forming a course with those components – a matrix course – which overlays and connects all other courses in the curriculum.

Students receive a mark for each skill component they complete. The mark is recorded for the substantive law course in which the skill component is contained (where it carries anywhere from 10 25 per cent of the total marks for the course) and for the course Legal Skills (where it carries five per cent of the marks for that course). The final mark awarded to a student for the course Legal Skills is based on the total marks he or she obtains for the 20 skill components in the course.

If students fail a component, they are required to repeat it until they attain a satisfactory level of competence in the relevant skills.

Students must pass the course Legal Skills to obtain their law degree (the cut-off mark for a pass is 50 per cent). They are awarded a pass, credit, distinction or high distinction on the basis of their marks rather than a pass/fail grade. When students graduate, they receive the usual certification of academic achievement and a separate skill certificate that indicates the mark and grade they obtained for the course Legal Skills, together with the mark they obtained for each module in the course.

The assessment incorporates feedback, it is followed by further teaching and the relevant abilities and competencies are subject to later assessment in subsequent components of the program. This has proved to be a resource-effective and sustainable way of incorporating formative assessment in teaching and learning.

Skills and ethics teaching is planned, structured and coordinated throughout the law degree at Bond University Law School. The School appoints a continuing senior member of academic staff to coordinate the Legal Skills course (the Skills Coordinator), in the same manner as it does for any other course. The Skills Coordinator is charged with policing the operation of the course, ensuring, for instance, that sufficient time is set aside for simulations to allow each student to be adequately assessed and given individualised feedback. The Skills Coordinator also ‘controls’ (in consultation with coordinators of substantive courses) factors such as the weight attached to assessment components, the learning objectives considered important, the content, and the teaching and assessment methods used to teach skills and legal ethics. We have made a series of video presentations for use in the exercises. Effective performance of skills is also modelled by instructors

In some skill components, the Skills Coordinator (who has expertise in the relevant skills) is actually responsible for teaching skills. Where there is more than one assessor involved, they use standardised criteria checklists and multiple-marking of some performances and sample work to ensure consistency in assessment.

The most persistent problem centres on the need to provide adequate feedback to students on their performance and to allow sufficient time for student reflection. One of the greatest benefits of teaching via a matrix course is that the load is shared among staff members – everyone has a stake in keeping the flame burning.

While law students enjoy skills assessments, attention must be paid to the total amount of assessment that students have to undertake during the course of their studies. We have not, as yet, seen evidence of surface engagement with tasks but that is one possible student response if over- assessment is taking place.

From the Law School’s perspective, we have succeeded in shifting the focus from oral presentation as an end in itself towards the development of better skills of reasoning and analysis, fact selection and use, issue identification, and persuasive writing. In the process of doing so, oral presentation skills have also improved.

The use of a matrix course enables us to integrate skills, legal ethics and values into substantive law courses in a way that maintains student motivation to learn, ensures consistency of teaching and learning over time, and uses limited time and resources more effectively than traditional moot assessment tasks.

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