I wanted to have the opportunity to share my view on this topic for a long time now and I am convinced that it deserves a blog post on Slovarblog. I have participated in quite a few international moot court competitions for my age and I also helped in the preparation of other teams. Additionally, I have started working in real legal practice a year ago so I had the chance to acknowledge most of the differences between the two already. I have most notably identified the distinction in the emphasis on law vs. the emphasis on the factual situation of a particular case (II.), the fact that in real life there is genuine money to be lost (III.) and that there is generally much less fun in real practice than in mooting competitions (IV.).
II. Law vs. Facts
At first I will address the common discussion about whether students should focus on the legal or the factual side of a moot case. It should be neither as rightly pointed out at the beginning of this video, which is generally bang on. It is true on the one hand that in a moot case the facts are uncontested and it is the law, which is unclear. One might hence infer that the arbitrators/judges/organizers want us (students) to concentrate on the legal perspective and find the “correct” legal solution. On the other hand however, a lot of people tend to forget that a moot is also supposed to be argued like a real case with a real client. And therefore, at the end of the day, what is going to matter is how the law is applied favorably to the client’s situation.
To give an illustration, I had to deal with a very challenging question of estoppel in one of the late rounds of a competition. After a fruitful pleading with a lot of questions from the judges I was supposed to address the estoppel issue in a minute or two. I was absolutely sure that the doctrine of estoppel applied and it was moreover expressly contained in the governing law so I took that as axiomatic. Therefore, I gave a long explanation of an analogous case, which was decided favorably to my argument. I did that because I took me weeks to find it and I wanted to showcase my research skills. It was a mistake because what the judges were looking for was precisely to persuade them that the doctrine of estoppel applies to the case at hand and explain why does it help my client.
Most lawyers in real life know this because they’ve done it for quite some time. Real life advocacy (just like a moot court in my opinion) is accordingly not supposed to be an academic exercise. With that in mind, here is my top tip- although there might be an interesting (and helpful) theory advocated by one of the members of the legal community for example, it is probably not going to help your case neither in a moot, nor in real life.
And while I am still on this topic I have to address the amount of factual evidence one has to deal with in real advocacy as opposed to a “bundle” in a moot. Some cases where a lot of evidence is involved are essentially about analyzing hundreds of invoices or a communication between companies going on for years. This does not happen in a moot, where everything is included in the original “bundle” and the rules of the competition forbid the contestants to extend any of the facts. An appearance of a signature on an invoice or an original document can destroy a case a few days before the hearing in real life unlike in a moot.
III. Real Clients and Money
Yes, perhaps the biggest difference between mooting and real practice is that in the latter, real money and people who care about it (directors, CEO’s, in-house counsels, members of the board and others) are involved. If you do not do well in a moot pleading, the worst possible outcome is that you don’t get through to the next round of the competition. This in itself can be frustrating because you have been preparing for half a year and then you are not able to show that during your 15 minutes of fame. Also, you let down your teammates who count on you to deliver. It sucks, sure.
However, it is incomparable to the pressure of real-life advocacy. After a short time in practice, it seems clear to me that a failed cross-examination can destroy ones case in arbitration. It does not happen often but if it does, a client can face a payment of a significant amount in damages just for an advocate’s lack of preparation or proper reactions during a hearing. Just imagine that the counter-party’s key witness capable of ruining your defense is now working for one of their remote subsidies or has a personal relationship with the counter-party’s CEO. If an advocate fails to point that out during the proceedings and the tribunal views this person as perfectly neutral, it can have a serious impact on the advocate’s chances of winning the case. These thoughts bring the element of pressure to the preparation. This cannot be compared to a possible stage fright in a moot.
IV. Mooting is Fun
This is something that you generally must do in mooting and cannot do in real life – having fun while doing it. During a moot-mediation session I was once offered a deal worth nothing to “my client” because it represented about 1 % of what we could’ve won in a real legal proceeding. I reacted by offering the opposing party a fake Rolex watch because it was (supposedly) worth more than they offered. I have not heard about anyone doing that or anything similar in real life advocacy just for fun (and rightly so!).
Additionally, during mooting I had the chance to visit places I’ve never been to and I obviously enjoyed the absolute most of them while I was there. It is however important to keep the fun part until after the moot ends because you can wreck a half year long preparation by going out sooner than you were supposed to, i.e. when you are still competing.
V. General Remarks and Conclusion
In general I am convinced that attending a moot court competition is the best way to experience anything closest to real advocacy before finishing law school. After working on a real arbitration, I can just confirm this although the level of expertise is completely different. There is a number of written briefs (compared to a single submission in a moot) and a lot of communication with an arbitral tribunal before a hearing itself (which of course is not there in a moot). Also, you learn to work effectively in a team, which usually has a team leader (coach in a moot and a partner/senior associate in real life). You learn to work hard in general, which requires a lot of determination. However, there are a ton of things, which one can experience only real life advocacy. Apart from the ones mentioned above, one that comes to my mind is definitely time pressure when for example a client wants to file a claim in a week and there is no time for preparation at all.
I hope I have touched upon most the important distinctions between mooting and real advocacy, which I set out to do. I also showed a lot of common ground between the two, especially that both require hard work and determination to do something “more”. For myself, I can say that doing a lot of mooting helped in my preparation for real legal practice and also gave me a lot of friends from around the world.written by Peter Plachy