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The Moot Court Trap
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The Moot Court Trap

Bar & Bench

by Goutham Shivshankar

I have little doubt that NLSIU’s extraordinary success at this year’s Jessup International Moot Court Competition has been the subject of much discussion in law schools across the country. To win at Jessup’s international rounds is something truly special and for any institution to do it twice over, is absolutely splendid. It is particularly heartening to note that other law schools have put aside traditional rivalries, even if only temporarily, and come together to celebrate NLSIU’s win. This second win, coming after a hiatus of 14 years, provides us with a wonderful opportunity to reflect on the sea change in the moot court culture at Indian law schools over the past decade and a half and its marked positive impact on the standards of mooting in the country. In this article, I identify some factors that have driven such change. I argue that while there are some things to be learnt from the moot court experience, it is important to ensure that other activities in law school receive their due share of attention and not be sacrificed in the blinkered pursuit of mooting excellence.

The Moot Court Story So Far

Few would dispute that when NLSIU won Jessup in 1999, they were comfortably the leading law school in India in terms of moot court performance. Many would argue, especially in light of their recent Jessup encore act, that NLSIU are still the best on this front. Many would however dissent. In my view, I think that as far as moot courts go, we would be missing the point if we continue to quarrel about which law school has the best team. Regardless of who leads, a pack of around 10–15 law schools is never too far behind – on this view, I think I can safely assume to have near unanimity. I also believe that irrespective of the mooting strengths of India’s top law schools relative to each other, all of these law schools have now reached a good standard of moot court performance in absolute terms. Although my days as a moot court participant are behind me, I still judge a fair few of these competitions across the country so I have been witness to this change at close quarters. It is no longer a question of judging the good from the bad. It is more often a case of identifying the excellent from the good.

What are the factors which have contributed to this change? Foremost would perhaps be the replication of the National Law School model across the country. That model, whatever may be its deficiencies, has made for an extremely competitive environment of one-upmanship amongst a section of Indian law students. The competition is however, not simply between individual students. The law schools themselves, as institutions, constantly compete for visibility and in the process end up encouraging certain kinds of student activities over others. In this (un)natural selection of college activities, mooting has emerged the preferred horse to back. Both NALSAR and NUJS did exceedingly well at moots in their formative years and this played a crucial role in raising their institutional profile. The pattern seems to repeating itself with NLU, Delhi currently. One does not have to look far for the reasons for the emergence of mooting as the favoured law school activity. Mooting pits law schools directly against each other in an exercise which showcases their students’ drafting, research and advocacy skills, wit, eloquence and logic. It is an activity that many litigating lawyers, who are often invited to judge such competitions, and the non-lawyer public, can intuitively relate to. Other traditional law school activities such as debating, writing research papers, organizing seminars and legal aid clinics, sports and cultural activities, etc., aren’t perceived to be lawyerly in the same way that moot courts are. More importantly, such activities (with the exception of debates and sports) are not showdowns with binary win-loss outcomes.

A second reason for the improvement of mooting standards across the country is the sheer increase in the number of such competitions being held. Most law schools in the country now host moots of different scales and sizes. Institutional pride is to be gained not just from winning moots but also successfully organizing them. The expectations from the organizing law schools have increased dramatically in the past decade. Participants demand transparency and fairness in judging standards, properly briefed judges, good facilities for accommodation, and the Holy Grail that is the “challenging and balanced” moot court problem. This is in stark contrast to the situation prevailing in the previous decades when complaints of bias and arbitrariness were rife. The improved quality of moot court organization has engendered a greater degree of confidence amongst participants of the merit of winning teams. This increased confidence, in turn, has perhaps sparked off a willingness to truly appreciate and learn from opposing teams. A large part of any individual’s improvement at moot court performance is undoubtedly driven by observation and emulation of the techniques of other mooters.

A final important factor has been the rise of legal journalism websites which highlight and keep a scorecard on the mooting performance and recruitment statistics of the Indian law schools. This again contributes to the creation of a hyper-competitive environment within and amongst the law schools.

The Need to Look Beyond Moot Court Performance

The trouble is that, by itself, moot court performance is a poor metric to assess law school performance. A law school, like any educational institution, must ultimately be judged in its ability to teach and provide a learning and intellectually stimulating environment for its students. What really counts is not how many or what kinds of competitions its students win but how much the law school has contributed to improving relevant skills of all, not just a few, of its students. Unfortunately, some of the very factors that have driven the moot court improvement story, i.e., an institutional patronage for mooting over other law school activities by the national law schools with the view to quickly raise their institutional profile, and an atmosphere of hyper-competitiveness surrounding mooting and recruitment statistics of law schools fueled by online legal journalism, completely obfuscate this basic objective of legal education.

I am not suggesting that moot courts don’t teach students anything or that a competitive environment is all bad – quite the contrary. I am only saying that the objective behind a law school encouraging mooting should be to help all its students learn from the experience; the purpose of mooting shouldn’t be to help the law school raise its profile and beat the competition. If this is properly understood, perhaps more law schools would focus on putting in place systems which encourage even those students who find moots to be extremely daunting to try their hand at it, instead of focusing exclusively on producing the best possible teams. Judges at internal selection rounds would perhaps be kinder to less confident mooters instead of mocking them as I have often seen being done.  More importantly, law school activities other than mooting would receive their due share of attention.

We have perhaps reached a stage where all mooting is competitive. This has made the activity exclusionary, something which it perhaps needn’t necessarily be. “Successful” mooters are typically big city students who have a flair for English cultivated over years of urban education at the country’s top schools. They tend to have a different (although not necessarily better) work ethic as compared to their peers, which is in part driven by the competitive environment created around mooting. For the others in law schools with less privileged backgrounds, participating in moots can be a traumatic experience. I know this to be true since I’ve seen it affect close friends of mine in ways which no “learning” activity ever should. These are the same friends who have overcome that trauma and are doing exceeding well in the real world, no thanks to mooting. Perhaps then, we should not just be asking what else can law schools encourage apart from moots, but also whether we need to rethink what the whole point of the entire moot court drama is – are we playing to win or are we playing to learn?

Just a last point on this issue – although I haven’t studied at universities abroad, my peers who have done so inform me that moot courts are not given half the importance abroad as they are in India. For one law school which claims, and others which aspire, to be “Harvards of the East”, this should be instructive.

Learning from the Moot Court Story

There is something to be learnt from the moot court story however. Firstly, healthy competition between law schools as regards any activity undoubtedly helps to raise standards of student performance to a certain point. However, too much competition is perhaps a bad thing, since it makes a law school activity exclusionary. The trick is to strike a balance.

Secondly, as regards openness and transparency, it makes sense for external observers such as the Internet legal journalists, to evaluate and report on how well law school activities such as moots are organized. The utility of maintaining a score sheet of law school performance at these events is, however, questionable. It only entrenches the flawed idea that law schools and their students “lose” when they don’t win at a moot.

Thirdly, law school activities which bring together students from different law schools to a common forum have the merit of enabling students to experience and learn from the distinct cultures of other law schools than their own. To the extent that any law school activity is scalable to a pan-India level, law schools should endeavor to make this happen.

Finally, and most importantly, other law school activities such as seminars, debates, legal aid clinics, etc., should be given similar amounts of attention as are given to moots. Many students would learn much more from such other activities than they ever would at a moot. Only at races do we choose horses for courses. At schools, it makes sense to choose our courses for horses for we want each horse to win.  Are our law schools running moot court races or running law schools?

Goutham Shivshankar is an Advocate, Madras High Court; Solicitor, England & Wales (non-practising)