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Lawyers of the future: Virtual mooting in COVID-19 era | Sigma Samanta Khan

Wednesday, April 22, 2020 @ 1:04 PM | By Sigma Samanta Khan

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Sigma Samanta Khan %>
Sigma Samanta Khan
Whether a law student is an eager litigator-to-be or a shy public speaker breaking out of their shell, mooting is a traditional and universal rite of passage for all law students, and practising lawyers often fondly reminisce about their law school mooting experiences.

Mooting is the oral presentation of a legal issue or problem against an opposing counsel before a judge. It is the closest experience that law students can have during law school to appearing in court and brushing up on their oral advocacy skills. Prior to presenting their oral arguments in moot court, law students are given a fact pattern or hypothetical legal issue. Students must take a position on this fact pattern, complete legal research on case law, statutes and other forms of jurisprudence, submit a factum and vigorously practise to defend their stances.

In Canadian law schools, students are expected to participate in their 1L legal research and writing moots and may choose to take part in other mooting opportunities as co-curricular experiences through formal application processes. Although stressful, mooting is an aspect of law school that prepares students for their future legal careers, and often, law schools go the extra mile to make it exciting by hosting the competitions in actual courtrooms and by inviting practising judges and lawyers to provide feedback.

Unfortunately for students in the 2019-2020 school year, mooting season directly coincided with the outbreak of COVID-19. Due to social distancing and quarantine protocols, many students found their mandatory moots — as well as moots they applied to and qualified for — cancelled. Many 1L students particularly missed out on this rite of passage.

My 1L class had our legal research and writing moot scheduled for the end of March; it was cancelled as social distancing began being widely adopted. However, as COVID-19 was causing the modernization of the justice system in practice through the use of technology in the litigation process, this same modernization had to be mirrored in legal education to prepare us lawyers of the future.

For example, as a result of the pandemic, the chief justice of the Ontario Superior Court suspended regular operations and court proceedings were being held virtually, via teleconferencing and or video/audio conferencing. One of many cases heard via teleconference in April 2020 included the bail review case of R. v. McArthur 2020 ONSC 2276.

As the pandemic progresses, and social distancing is the status quo as of now, many other lawyers are presenting their civil and criminal cases by way of some sort of social media technology. There have been push and appreciation from lawyers regarding this transformation of the justice system, and the swift efforts of the court systems to adapt to legal technology, and as such, lawyers of the future should be taught to adapt likewise.

Therefore, although our in-person moot was cancelled, our professor decided to take our moot online as the purpose of mooting is to gain litigation experience while in law school and the litigation experience during and post COVID-19 easily means virtual oral arguments. It is unknown what kind of an impact COVID-19 will have on legal practices in the long run — however, as lawyers of the future, online court does not seem as farfetched as it once did, and adaptation to and adoption of legal technology is a necessity.

In fact, it can be argued that the transformation of the justice system to include online court proceedings can increase the use of technology positively in legal practice by emphasizing legal technology to modernize the profession, increase access to justice by speeding up administrative delays, ensure urgent matters are heard under various circumstances and cater to individuals that are unable to make in-person appearances due to personal hindrances.

With this in mind, my 1L class researched to write our factums and organized ourselves into virtual groups in order to present our oral arguments and rebuttals on an s. 8 Charter hypothetical (coincidentally on R. v. Mills 2019 SCC 22 and online data privacy on technology). We appeared via Zoom to moot to our professor and volunteer moot court student judges. This experience contrasted with traditional mooting as we were facing off online rather than a courtroom. Nonetheless, our oral argumentation skills were expected to remain strong and our rebuttals sharp.

This experience trained us as lawyers of the future who are being well-versed in technologies that will inevitably disrupt the legal field as we know it, and prepared us to handle virtual court proceedings for transformed post-COVID litigation practices.

The law must adjust to reflect to needs of society amidst various changes in circumstances, and legal education is no exception.

Sigma Samanta Khan is currently a rising 2L juris doctor student. Her legal areas of interest include privacy, technology, litigation, intellectual property, access to justice and international law.

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