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A Moot Court that Fosters Both Discipline and On Your Feet Risk-Taking

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: November 15, 1998
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A Moot Court that Fosters Both Discipline and On Your Feet Risk-Taking

by Jeanne Curran, California State University, Dominguez Hills
and Susan R. Takata, University of Wisconsin, Parkside

There are many perceptions that trail along with moot court as a learning tool, most of which assume that the model is adversarial, professional, and technical, and that as a consequence it should have no place in a graduate liberal arts curriculum. Like most such sweeping generalities that reflect the wicked little unstated assumptions we carry with us into teaching, this one is patently wrong. Moot court as a teaching model will present as varied a collection of teaching styles as those that undertake it.

We have been particularly blessed by a series of grants from the CSUDH Associated Students, Inc. that has funded our moot court project for thirteen years. We are proud of the continuity of the funding, and of the fact that students judged the program worthy of our instructionally related funds. And we are here to assure you that ours is a model that not only belongs in the undergraduate liberal arts curriculum, but one that we believe should be extended to most of our incoming students.

We have chosen to develop this paper in the direction reflected by the session proposed by Dr. Jim Lennertz of the Department of Government and Law at Lafayette College. He posed to us a number of questions. We think they are good questions, and we believe that our thirteen year history with this program will provide some plausible answers to them as well as offering good data and materials to which others may have access to replicate our success.

Paper organization:

  1. The model. Our moot court follows the format of the law school moot court. At that point most semblance ends. Our attorneys and judges return from year to year, help us design the program, and are regarded by us and the students as part of our college family. Our judges do not render decisions, by choice, for they do not want competition. Our students are expected all to perform at exhibition round level. A competitive model has been turned into a collaborative project with an academic performance tacked on for good measure.

  2. The materials. All requisite materials for arguing the case are provided to all students. Undergraduates, new to the study of the legal system and its process, are not turned loose on the law library to collect 47 questionably relevant cases. They are given the leading cases. The legal concepts and doctrines are defined as clearly as we can manage for all. They are welcomed to add to their knowledge by exploring and studying, but no surprises. What matters in this performance is simply the ability to think well on their feet, with the relevant materials easily at hand, and the best charismatic skills they can bring to understanding their listeners and persuading them. In the process our students learn quite a bit about advocacy and how it works.

  3. The teaching. We race through about twenty-four legal concepts within the first two weeks of class. Then we practice with teachers. Then we introduce "real attorneys." Once we do that, they don't want teachers anymore, not even when the teacher is a practicing member of the California bar. They want practice. They have been held too long in abeyance, not given a chance to race with what they know. We learned that to our dismay a year ago when our high school group was nonplussed by the fact that they had not been permitted to argue at the university finals. We never even dreamt they would want to, but we were wrong.

    We also learned something about covering large amounts of factual information. It takes both patience and discipline. Our students have been patient for a long time, all the way into college, for the most part, and no one has ever let them do anything real with all that learning. That dismayed us as teachers because it is difficult if not impossible to teach so quickly the concepts and doctrines to students completely unschooled in law. But we can manage a quick overview, which then allows us to bring in "real' attorneys, and let the fray begin. Only as they find they are bested every time, are they willing to go back to the materials and study intensely.

It was our students way of processing and gaining discipline with the materials that led us to create the Dear Habermas site. We discovered that the Web was easier on us than the classroom battle. Students still raced through everything we could provide, much as they race through the Louvre. Only once they had discovered what was there would they return and begin to settle into the discipline they needed to argue with "real" judges. Now, in the thirteenth year of the program, we are putting everything on the site, and learning to allow to these children of the TV age the same pattern that worked with TV. Turn it on. Ignore it. Come back when it suits you. And they do. Perhaps we as teachers need to learn some of the advantages the TV age has brought us.

Actually that's the way Earl V. Pullias taught me history way back when. Don't study a single book, he admonished. Read 500. By the time you do that, you'll know the history. And he was right. Our model encourages reading broadly, understanding a few concepts deeply and well, and then practice, practice, practice at thinking on your feet in front of someone you respect who scares you just a little.

We are aware that this is not the general approach to knowing the law. Reading cases every night until your eyes are crossed is more like what we learned. Adversarial knowing is based on debate and argument, but good lawyering is based on the charismatic skill with which the courtroom lawyer can assess the effects his/her stories will have on listeners. The new associate may thoroughly research the case, but it is the skilled litigant who knows how to handle that knowledge in the courtroom battle.

This program teaches students to tell stories, to use stories to develop a complex narrative context through which the argument must wend when judges control the thread of the narrative, and when hard questions will be launched on both fact and issues of law. The story and how well you can fit it to the law and get it across in oral argument is "the thing." That makes collaboration work, as they begin to learn that more "cases," more "knowledge," will not afford directly more power. What affords the power in this courtroom is the ability to argue on your feet with people that impress and scare you, at least a little.