Academic journal article The University of Memphis Law Review

Judging: The Missing Piece of the Moot Court Puzzle

Academic journal article The University of Memphis Law Review

Judging: The Missing Piece of the Moot Court Puzzle

Article excerpt

I. INTRODUCTION....................

II. THE THREE COMPONENTS OF EFFECTTVE JUDGING....................55

A. Preparation....................55

B. Judging the Round ....................58

1. The Moot Court Judge's Role....................58

2. Asking Questions.................... 60

C. The Critique....................66

IJJ. CONCLUSION....................73

I. INTRODUCTION

Moot court has long been an integral part of the law school landscape.1 Moot court exercises are a standard part of first-year legal writing programs,2 and virtually every law school has a moot court board that runs in-school competitions. Inter-school moot court competitions are popular law school "sports" in which institutions aspire to powerhouse status.4 There are even guides to aid schools in selecting which competitions to enter.5 There is also an extensive library of moot court advice-some books geared to the student advocate and others aiming to help both students and junior attorneys face their first forays in front of the appellate bench.6

Moot court is an established part of law school life because it teaches valuable lessons that the rest of the curriculum leaves largely uncovered.7 Students learn to be advocates, to think on their feet, and to respond to challenging questioning.8 Moot court gives students a first opportunity to see how the law applies to a client and to discuss the law with a client's interests at heart.9 Students get their first opportunity to do what lawyers do, instead of just reading and hearing about it. Moot court gives students a taste of real appellate work while teaching skills that will help both in law school and in all areas of practice.10

Moot court does, however, have its detractors. In his essay In Praise of Moot Court-Not!,n Ninth Circuit Judge Alex Kozinski skewers moot court competitions for their lack of realism, lack of helpful teaching, and for inflating the participants' sense of selfimportance.12 Commentators on appellate advocacy note a disconnect between moot court and real appellate arguments and explain that arguments that win in actual court would not pass muster in moot court.13 Others note that law school appellate advocacy instruction often does not teach appellate advocacy as much as "How to Win Law School Moot Court Competitions."14 Even professors who support moot court suggest various ways standard moot court programs could be changed to be more realistic and helpful.15

One aspect of moot court that is the target of frequent criticism is the lack of competence of many of the individuals who judge the rounds and critique the students' performance. There is "a fair amount of substandard, even atrocious," moot court judging.16 Some of the problems lie with unhelpful critiques in which judges praise nothing more substantive than eye contact while telling students that they are better than most practicing attorneys.17 Another problem lies with judges who lack familiarity with the substance of the problem and whose judging rewards cleverness and poise over persuasiveness and sound legal argumentation.18 The competition aspect of moot court also affects the judging. Moot court judges often engage in gamesmanship and too often see the rounds as a chance for hazing-to toughen the students for what they may face in the real world.19 Even real judges approach competition judging differently and are often more aggressive than they would be in questioning real attorneys.20

A basic problem, probably the most crucial problem in moot court rounds themselves, lies in the questions from the bench. Moot court judges, by definition, do not decide the case they hear argued. This leads moot court judges to ask questions that a real judge would not ask because a real judge would not find the answer helpful to resolving the dispute.21 Moot court judges instead ask questions to help them score moot court rounds, questions that aim to judge a student's familiarity with case law and poise in the face of pressure. …

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