Coronavirus

Moot Court in a Time of Coronavirus

If law students can run a moot court tournament through video conference, I'd think appellate courts can too.

|The Volokh Conspiracy |

Each spring, the Case Western Reserve University School of Law hosts the Dean Dunmore Moot Court competition, in which students enrolled in Appellate Practice compete. Preliminary rounds are typically held at a local courthouse, with the semifinals and finals in the law school's moot courtroom.

For obvious reason, the Dunmore could not proceed as it had in the past, but it did proceed. the Dunmore Moot Court Board (which is made up of students) figured out how to place the entire competition online, using Zoom not only for the courtrooms, but for chambers in which the judges could confer and deliberate and waiting rooms for competitors and spectators. I participated as a judge and the format worked exceedingly well.

This morning, the Dunmore held its final round, with Judge Chad Readler, Senior Judge Alice Batchelder, and Justice Michael Donnelly presiding, and second-year students Ali McKenna and Dillon Brown arguing. The round was excellent. The advocates were able to present their arguments and the judges were able to engage with probing questions, all before an online audience that would have filled the moot court room.

Live arguments are certainly preferable most of the time, but the experience of the Dunmore Moot Court Board shows that online arguments can be very effective. Some courts have discovered this, but unfortunately some courts (including SCOTUS) have put their oral arguments on hold. In most cases, this is wholly unnecessary. If our students can successfully transfer an in-person moot court competition to Zoom without any need to postpone the proceedings, appellate courts (at the very least) should be able to do so as well.

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  1. No Zoombombing? Thank God someone knows how to change the problematic default Zoom settings. My 16-year-old son’s community college chemistry class (difficult enough to move a chemistry class with labs online) was Zoombombed with porn the first online class because the professor was clueless about Zoom’s default settings. Fortunately the “share screen” setting was turned off, and the waiting room setting turned on, by class #2.

    1. What I don’t understand is why it is so difficult to trace this stuff, assuming that law enforcement wanted to.

      It has to have an IP address (not necessarily a correct one) in order to get there because that’s how the internet works. And if you know how the internet works, it isn’t that difficult to trace an IP address back to where you lose it, which is where it was fabricated.

      Zoombombing is obnoxious, but there is a lot of financial fraud. A lot of it is coming from overseas, but from countries with which we have diplomatic relations, and there is International Law, not to mention the fact that said countries would like to retain their diplomatic relations with the USA.

      I don’t know why we can’t go to these countries and tell them to either police what is coming out of their countries, or we’ll ban everything.

      1. What I don’t understand is why it is so difficult to trace this stuff, assuming that law enforcement wanted to.

        Law enforcement generally focuses its investigation on things that are actually illegal.

        1. Breaking into the network of another (including police departments), encrypting it and demanding a ransom payment sorta strikes me as being at least somewhat illegal…

          1. On a more serious note, pretending to be someone you are not is called “hacking” and that’s been a crime since the 1980’s. By definition, using a user name you aren’t authorized to use and using the authentication (i.e. password) for that user is defined as being illegal.

            And the underlying issues of fraud, extortion, and malicious damage to the property of another were illegal way back when people didn’t even know what electricity was.

            1. Hacking is illegal, sure, but if the malicious actors are outside the country or well-hidden its impossible to prosecute. And once the stolen (or manipulated) video is made public, its too late, the damage is done.

              1. I’m assuming Dr Ed’s response might be something like: Yes, the most sophisticated bad actors might get away with it. But there will be lots of amateurs (or semi-skilled pros) doing this that we *can* catch. And we should try to catch them, to dissuade people from doing this type of action.”

                I’d find that argument persuasive.

          2. That’s true.

            I assumed that by “this stuff” you were referencing “Zoombombing”, the thing mentioned in the comment you were replying to, rather than some other behavior that has nothing to do with anything else in this post or the replies. My apologies.

  2. Not that I have a dog in this fight, but no – being able to pull off a role-playing game primarily designed to give law students some resume fodder does not tell us anything meaningful about following similar practices in real life.

    1. But depending how Zoom is set up, both technologically and legally, what it does do is give law students something they can literally put into their resumes.

      What are the implications, both good & bad, of prospective employers actually being able to watch the student’s moot court presentation? This would bring grading to a completely new dimension, wouldn’t it?

      1. What are the implications, both good & bad, of prospective employers actually being able to watch the student’s moot court presentation? This would bring grading to a completely new dimension, wouldn’t it?

        The same way making hiring decisions based on 1L grades does, perhaps.

        1. I’ve volunteered, over the years, to judge my law school’s moot court. I’ve seen about 100 students, over time. I thought it definitely gave me insight into their, general, overall abilities. If I were hiring, being able to see a student’s moot court would be more useful than 99% of the actual job interviews I’ve done and had. Of course moot court will tell me almost nothing about what sort of lawyer you will be 5 years down the road. But it will tell me something about your current ability to analyze cases, present yourself in a courtroom, etc.. And that ain’t nothing.

          1. And what would stop a law firm from doing it’s own moot court as a form of interview?

            1. Hmm. Nothing, of course. But with moot court, students prepare A LOT, in advance. Tens of hours, for the best-prepared students. It’s hard for me to imagine a student having the time to prepare for, say, 10 hours, for an interview with one law firm. Almost impossible for me to imagine her having the time to prepare for 20 hours, for interviews with 2 law firms (each firm, of course, will have its own question(s)). Absolutely impossible to imagine this student being able to spend 90 hours preparing for interviews with 9 firms.

              Makes much more sense for students to prepare for their own school’s moot court (they can devote as much or as little time as they want, of course), and then their performance can shared with any prospective firm that finds value in looking at the tape.

              (I asked my old law school, for at least 20 years, why these moot court are not routinely taped. For the students’ own use, in job interviews. And for the school’s own use . . . in my Trial Advocacy class, it would have been great if our teacher could have shown us small snippets of past performances, as examples of What To Do, and Things To Avoid. My suggestion never got any traction…just a few decades of polite smiles and repeated, “Interesting idea. We’ll look into it.”)

              1. Um – would you as a student considering moot court, consent to a video of your performance being used potentially to teach other students on what not to do? Or to aid future employers to evaluate your abilities?

                Moot court might be a good educational experience for the students who do it, but basing hiring decisions on who “wins” them is essentially just rewarding whoever came to law school with the right skill set. It’s arbitrary and unfair.

                1. Fair question.
                  As a law student, I would have absolutely no problem with the school using video of me, say, 2 years later and thereafter. (i.e., after I had graduated). From a legal standpoint, I think there would be no problem with a school saying to its students, “Part of the deal of doing moot court (Trial Advocacy, etc) is that you agree to be taped, to be used to help teach future students, after you graduate.”

                  Now, maybe there would be some pushback by students. But it’s been my experience that students doing moot court are relatively confident about their legal abilities, as compared to the rest of their law school peers. And after a year or so, it would be just a given, and non-controversial.

                  (It does seem more technologically difficult to do for law firms. A school would probably need a full-time worker whose job would be to take the tapes, and edit them, so each student who wanted would get his or her highlight reel, which could be distributed to law firms that wanted to see them.)

          2. I thought it definitely gave me insight into their, general, overall abilities.

            Without any independent way to understand what their “general, overall abilities” actually were, this is just open speculation.

            If I were hiring, being able to see a student’s moot court would be more useful than 99% of the actual job interviews I’ve done and had.

            Right – it’s resume fodder.

            I wouldn’t deny that seeing a person’s moot court performance would tell you more about them than a quick in-office interview would. But that hardly puts you in a better position to evaluate one candidate against another. And any argument you might make to the contrary – well, this candidate went out for moot court, and that one didn’t, therefore I know the first is in some sense more dedicated, blah, blah, blah – is going to spiral into self-justifying circularity.

            To put a finer point on it – I didn’t do moot court in law school. Does that mean I’d be a worse litigator than one who did?

          3. Observation of moot court performance is worthwhile, but it has limitations. It is especially good for spotting students who will be good in the litigation department and/or with respect to practice development. I provided employment offers on the spot more than once in that context and saw judges similarly offer clerkships.

            Students who were lackluster in moot court, however — wooden, dogmatic, awkward, less than lightning-quick — sometimes became good performers in other contexts (intellectual property, administrative, corporate, real estate, banking, and the like), perhaps even better than some of the slicksters who crushed them in moot court.

  3. yeah, I am not so sure. What about security (how secure are the “chambers” on zoom for example, from a cyber-security perspective)? Who owns the video record, and where is it actually stored? Zoom is ok for a play date, I think that there are too many unanswered questions for real life.

    1. For me, it raises the question of why we would do oral argument at an appellate level, at all.

      I can understand the appeal/need to conduct trials for the presentation of evidence, to a degree. Witnesses need to be examined and cross-examined, other evidence produced and challenged by one’s adversary, the judge needs to make rulings as to admissibility and whatnot. And I can understand that, at the appellate level, there needs to be a give-and-take between judges and advocates designed to push at legal arguments and explore hypotheticals.

      But why does that need to happen live, and face-to-face? It seems that moot court and appellate arguments select for a type of lawyerly skill that no longer serves any appreciable purpose. Why wouldn’t we just submit our briefs and then field responses from judges? Wouldn’t that enable advocates on both sides to produce their best arguments and present any additional caselaw that the judges might request?

      Law professors seem to think this kind of live give-and-take is essential to the practice of law, but it’s really just a tradition we’ve inherited. There’s a real skill there, but it’s not as though any decision should go a particular way just because one advocate was better in oral argument than the other.

  4. The 9th Circuit has moved to remote oral arguments by video, and I think the feedback has been positive.

    In California state appellate/Supreme courts, oral argument is pretty much a waste of time. That’s because the state courts of appeal and the Supreme Court write their opinions and dissents BEFORE oral argument. (I believe they do this due to the state‘S requirement that decisions be issued within 90 days of oral argument.) In the best of cases nationwide, oral argument has a marginal effect. But if you think that California justices are going to switch votes, scrap already-written/circulated opinions, and draft new opinions in a compressed time period because of 15 minutes of oral argument (except in the truly rare case), I think that’s quite unrealistic.

    1. So oral arguments at the appellate level in CA are really just sort of a “full employment initiative” that is creating work for lawyers to pad their billable hours. If there really is not impact how much does holding what sound like “sham” oral arguments increase litigation costs on an appeal for both parties? In my experience, even a “routine” appeal with oral arguments leads to 20-50 billable hours in prep, travel, argument time, and associated work.

  5. Could you either link to describe the Zoom setup? It sounds like people flowed freely from the argument “room”, to the “waiting room”, to the “judge’s chambers”. Knowing from an administrative level how this was set up, regulated, and used would be useful for many out there.

    One business operation we are trying to continue is interviewing and hiring. Having this kind of set up would avoid lots of the hiccups we have had with trying to get multiple candidates in front of multiple interview panels.

    1. This year’s LA County Sci Fair had similar operational issues. I suspect most of those were just learning curve.

      I didn’t notice security issues but if the Zoombombing reports and a recent report of the CEO acknowledging security issues and the intent to prioritize fixes are accurate, they clearly have much to improve on that front.

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