A Brechtian Way of Mooting

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This year, international legal education reached a (cinematic) milestone. The documentary film African Moot (Shameela Seedat, African Moot, 2022) was showcased at the international documentary festival HotDoc and entered several other film festivals across the world. The film follows a group of law students who take part in the annual African Human Rights Moot Competition. The audience gets to know their dreams and ideals, but also their desire to shine and win the competition. The film familiarizes a broader audience with mooting practices no doubt well known to readers of this blog: the selection of students, the training and preparation, the fun and struggles, the tensions within teams, the excitement when the competition starts, the sense of victory, disappointment or frustration about the scores awarded by judges.

To an international law educator, the film is familiar and estranging at the same time. It represents what we, teachers of international law, have probably done many times: supervising teams, acting as judges, discussing memorials, networking at the event, etc. At the same time, the film medium offers the perspective of an outsider. We are looking at ourselves, at the practices that we engage in, the ways in which we discipline students.  Although the film itself lacks a critical distance to the practice of mooting, it nevertheless creates an uneasy feeling: what kind of pedagogy are we engaging with in making the simulation of a courtroom a competitive space? How do we discipline students in the performance of law? How is the Western legal courtroom exported to the Global South? What attributes are we reproducing as distinguishing a ‘successful’ lawyer? These questions are not limited to the academic international law profession. One of the film critics, Davide Abbatescianni, reviewing African Moot noted the “conflict between the bizarre, competitive nature of a human rights-focused event and the sincere concerns of the students”.

In the years that we have participated as students, supervised teams, acted as judges or joined the audience, we always had the feeling that something was awry in international moot court competitions. Sure, they have a lot to offer students: the development of research and communicative skills, team work and public speaking, networking and an experience of law ‘in action’.

Apart from the mimicry of the courtroom that is arguably a gendered, racialised, ableist, and classist space (Schwöbel-Patel, ‘Mooting’ in Critical Legal Pocketbook), the aspect that we would like to problematise here is that of mooting’s competitiveness. When teams enter a moot, they enter into competition with one-another. Often, there are multiple rounds in which some teams are eliminated and others progress. The clients as well as the relevant issue remain abstract and removed. Because moots are set up around a legal problem or conundrum, they rarely connect with the social, economic, political, and cultural context of the courtroom or client. Depending on the area of law represented, the states, communities, groups, or individuals who are nominally represented never enter the picture.  The main concern is not to represent a client, not even to win the case, but most of all to win the competition. Rather than appearing on behalf of someone or something, moot court participants appear against someone.

This raises the question whether it is possible to organise moot courts in a different way, whether it is possible to prevent what Abbatescianni called the “bizarre conflict” between the ideals that students bring to a moot court and the competitive format that forces them to behave like contestants.

We believe this is possible. A few years ago, we set up a new initiative, which we labeled ‘experimental moot court’ (also called ‘radical mooting’). The term ‘experimental’ is taken from Bertolt Brecht’s writings on rehearsing in theatre. By contrast to earlier models on rehearsing, which emphasized the need to mimic a given ideal model as closely as possible, Brecht treats rehearsing as a collective, experimental enterprise (see Werner, Repetition and International Law, CUP 2022). Existing moot courts by and large adhere to an unspoked rule that rehearsing is about achieving an imagined ideal. This ideal can be achieved by only discussing the arguments and sources set out in the score sheet, by adhering to certain dress codes , by adopting a particular posture and behavior, and sticking to courtroom decorum.  Experimental mooting, in contrast, is about creativity, collaboration, surprise, refusal, critique and reflection, bringing the real world into the courtroom, and connecting to real-life problems.

So what does that look like in practice? In the past two years, we have experimented with experimental mooting with teams from Zimbabwe, Rwanda, China, Indonesia, the UK and the Netherlands. This year, a team from Suriname also joined the event. First and foremost, the experimental moot is not set up as a competition.  Students do not operate in fixed teams from their home university or their own country. Instead, they are mixed with others and thus forced to work together with students from different parts of the world. Since the moot court is not set up as a competition, it is not necessary to have fixed, pre-given criteria that apply equally to all teams. In other words: there is no need to work with a fictitious case and made-up facts.  Instead, students can try out what it means to litigate a real-life case, and issues that matter concretely to individuals, communities and states. They also learn a skill crucial to litigation practice: the narration of facts and history. In experimental mooting, the ‘facts’ are not given, but presented, represented and contested in court. Last year, for example, we rehearsed the Al Bashir case. Different teams located the start of the conflict at different moments and at different places, and (consequently) came up with different ‘plots’ in their stories. 

Secondly, taking away the competitive element allows for a different role of the judges and the audience. Judges do not act as assessors of the teams but participate as characters in the rehearsal. We ask them to adopt a character (what kind of judge are you?) and hold interviews with them. Teams get to see the interviews in advance, so they can adapt their strategy to the judges presiding their case. The audience is also asked to adopt a role and to listen. Their role might,  for example, be as state representatives, representatives of victim communities, or the press. Instead of a formal assessment after the pleadings, we hold reflection sessions with the teams, the judges and the audience. The central question is not who performed best, but what the pleadings meant for different audiences and what happens when sensitive political questions are translated into the language of law.

This relates to a third point, namely the importance of audience and strategy. In moot court competitions, there is only one audience that matters: the judges, who act as examiners. In practice, however, litigation is geared towards a number of audiences, including the press, other states and communities, and others who may have a stake in the outcome of the case. The experimental moot gives license to speak to these different audiences. One possibility that opens up is the open conflicts with judges and disrupting the court case is part of the strategy. This strategy of rupture can underline the lack of legitimacy of the court and reinforce the political status of a defendant.  In experimental moot courts all this is possible, but not as some kind of lucid play. Teams must consult with their ‘clients’ (played by actors) and discuss the pros, cons and ethical aspects of different strategies.  

Fourthly, and related to the strategy: teams are encouraged to think about their presence in the media. The last day of the moot court is about developing a media strategy, including a hashtag campaign, a selection of images and a short message, which can be taken up by the press.  As this is not part of the regular law school curriculum, we organize a preparatory session on the media/lawyer interaction to make students aware of this aspect of professional life.

African Moot, the film we began this account with, carries a motto: “It takes a competition to cross borders”. We disagree. The competitive element in moot courts creates units (national teams), who all try to mimic the ideal contestant as much as possible. This plays into the hands of viewing justice as a competitive rather than collective pursuit as well as a Western hegemonic ideal of courtroom proceedings. Experimental mooting aims to do the opposite: Students from different parts of the world are mixed, and are given the freedom to be creative.  The result, as we have seen in the past years, is a wide variety of styles and strategies. We have seen doctrinal approaches, political speeches, disruptive approaches and teams for whom litigation in court was mostly an instrument to develop a media strategy. We have heard opposing opinions on the need to translate political issues into the language of law and litigation.  We have seen students who became more critical about international law after they ‘performed it’. We have also seen the opposite.  An experimental moot court could never compete with traditional moot court compositions in terms of prestige or size.  Indeed, given our critique of the competitiveness, entering into competition with other competitions would be somewhat hypocritical. We embrace the fact that  the set-up dictates that the experimental moot is bound to remain relatively small. Given its non-competitive nature, students cannot take home prestigious awards to boost their personal reputation or that of their law school.  That is exactly the point: Experimental mooting creates a space where students are not turned into similar units, compared and ranked, and measured against an ideal that feeds into stereotypes of the ‘ideal’ advocate (often associated with a male/Western/assertive lawyer). Experimental mooting is a space where students collaborate in order to experience differences, dilemmas, and the limits of the law.

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John Morss says

October 27, 2022

Shoot me down in flames, but much as I sympathise with the critique of mooting competitions, and their privileging of a private school debating aesthetic, "the narration of facts and history" seems to me a euphemism for the much derided technique of "legal fiction": the role of imagination-driven but disciplined and ethically accountable persuasion, including self- and collective persuasion, is not significantly altered by rejigging the more vulgar of the competitive frames?