Students should be judges

Law students are often encouraged to participate in moots, which are typically a mock legal argument in an imaginary appellate setting.

Less often, mock trials are organised for them: the format is perhaps less popular because of the need to have mock witnesses (as well as the moot judges), which takes a lot more resources. And also because it is less easy to make an apples-for-apples comparison, so more difficult to have a hierarchy of competitions, the finals being held before eminent personages such as KCs or judges.

But it seems to me it may teach students even more if they are given a chance to preside as judges in these imitation court proceedings.

An immediate objection may be that they know little law, so would not be able to properly judge the quality of competing legal arguments.

That is entirely true. But the common law prides itself from being judge-made law. In the beginning (and even now), when there are no very clear rules governing an area, judges must fill the gap and adjudicate as best they can. Why not give students a first hand experience on this?

To make it practicable, let’s makes the substantive and procedural “law” as simple as possible. Take a cue from actual Tribunal rules, which often provides that the Court can apply such rules of procedure and evidence as they see fit.

Once we put students in the judge’s seat, many considerations immediately arise. How are documents to be referred to at trial? What timelines should be given to the parties for filing evidence? What happens when one side is late? Who should speak first and why, and to what extent is the other side allowed to intervene?

Many of the concepts that are the bread and butter of the litigator arise out of necessity. The numbered trial bundle is there so everyone can be on the same page. Parties’ agreement on issues is encouraged as far as possible to save Court time and to focus on the real issues: any one who has to be a Judge will be irritated when one side of a dispute takes obviously bad points. Parties’ accounts are often silent on some key facts, and any decision-maker has to “make a factual inference”, or in plain words an educated guess based on common sense on all available information.

Resolving disputes through a court-like procedure has its uncertainty, costs, but is also an essential part of a civilised society. Given law students spend all their time reading and thinking about it, it can’t hurt to give them a practical perspective by asking them to do it themselves.