Mr Kishan Gupta is an associate at Cyril Amarchand Mangaldas (CAM) who has judged a number of moot court competitions and arbitration competitions. In this interview with Sarthak Yadav from University School of Law and Legal Studies (USLLS), he provides a valuable insight into how these competitions are judged, how they can be improved and the value of judging a competition.
1. Please introduce yourself to our readers. Tell us about the man behind the CAM veneer.
I am a Mumbai-based lawyer working as an associate with the disputes team of Cyril Amarchand Mangaldas. My affinity towards the field of disputes settlement has compelled me to keep pursuing this practice area in varied forms, including in the capacity of an arbitrator/judge in moot court competitions. But yeah – outside of work, I enjoy travelling and sketching, and also following Formula One racing.
2. When we associate legal research with mooting, we often talk about its importance for the teams, but not the Judges. How important is legal research when you are judging a moot, and how can one equip themselves for the same?
I think legal research is definitely required, I think you cannot just wake up in the morning and sit for a hearing/oral rounds. One needs to know his fundamentals and what the other person is talking about. Unfortunately, I see a lot of Judges missing their briefing sessions considering it to be a redundant exercise. For obvious reasons, that is not the case. I feel if you are not aware of the factual matrix of a case (and of course, a lot of Judges do not scrutinise the facts in great detail due to their work-related commitments) and also the basic legal research relevant to the facts, then it obviously affects your way of questioning and also your ability to understand the extent of legal research a team has done. As a judge/arbitrator in a moot court, the least that one can do is to go through the bench memorial and attend the briefing exercise. It gives a perspective into the relevant line of reasoning and helps appreciate the argumentation better.
3. What exactly constitutes the Judges’ briefing and how much does it shape your interpretation of the problem and the law with which it deals?
Let me take a step back and talk about the bench memorandum first. Primarily because it is circulated with the Judges well before the briefing session itself. Due to the bench memo, a Judge gets a clear idea of what all can be the potential arguments of the participants. Usually, it is a two to three pager brief. More of pointers of sorts – which helps in understanding exactly what is going to be argued in the session and what the moot court is about. This is exactly how a hearing session should ideally pan out. However, after the circulation of the bench memorial, the briefing exercise happens and in most cases, the problem drafter himself takes it. Through this, the drafter tells you about his flow of thoughts – why he came up with a particular issue and what is flowing from where. The drafter tells you that “See, this was my thought process, this case I read/confronted in real life, so and so happened which is why I came up with this fact proposition and XYZ could be the possible legal submissions from both the sides.” The session helps contextualise the entire problem and its issues, and without that, I feel one might be in a state of limbo – knowing just the legal proposition or the possible submissions without any background as to how it came about. Which is why I think briefing sessions are really important, not only so that a Judge can understand all of this, but also so that they can clarify any doubts that they had while going through the bench memo/moot case, etc. It also affects teams and the whole mooting exercise, because as a Judge, you also have to fulfil the intention behind the drafting of the problem in a given fashion and not just the basic issues it has.
4. In your experience, how much does a Judge have to adhere to the briefing when they score teams? How are you supposed to score instances where a speaker uses a different interpretation of the issue, or uses different law than the organising committee but still makes a strong argument that answers the issue at hand?
A4) Even though I do not see such instances so often, but these are the ones which you will always look forward to the most as a Judge, because it is an amazing brainstorming exercise with the participants, as otherwise you know what the context of the problem is and possibly what the other person is going to argue. I personally do not believe that a Judge should strictly adhere to what the organisers have told them to listen for, as I feel that discourages creativity. As long as a speaker is within his allotted time limit and if he wants to utilise it in a way that it gives him the leeway to make an interesting argument, I feel the Judge should definitely encourage and be open to understand such submissions.
Having said that, Judges should be aware of what could be an interesting argument and what is a blunder. Sometimes, it so happens that participants argue on a completely different line without understanding the implications of the submission on their case. Obviously, such attempts should be discouraged, but to know that the person is arguing something unique and interesting which may be somewhere or the other related to the identified proposition – is something that I feel every Judge should look forward to. I will personally mark such a situation with a good score provided that the speaker is making sense.
5. What are some common pitfalls you have noticed organising committees falling into when briefing Judges, or even conducting moots in general?
This is a tricky one.
In my experience, one thing I have seen organising committees do is that they make some individuals sit as a replacement Judge at the very last moment. In my opinion, this should be discouraged. There is no point in constituting a quorum if it is not well-versed with what is going to happen in the round. Usually, it so happens that the replacement Judge is completely unaware of the facts/laws that could be argued in the hearing round. The most unfortunate are those where the replacement Judge has no past experience or understanding of the law on which the moot court is based. In my own experience, a couple of times I have seen organising committees approach practitioners on a one-to-two hour notice to be someone’s replacement. I feel that is not helpful or fair to the whole mooting exercise generally, or to the participants who prepare for half a year to learn something from the moot, particularly. It is natural for a Judge who is made to sit in such situations to be unable to speak throughout the rounds, or to appreciate the arguments or the factual interpretations. So that is one of the major red flags I would definitely want to highlight.
Another major issue I have personally experienced is when organising committees, because of a paucity of time, cancel feedback sessions. I think that just defeats the whole purpose; if there is no discussion between the examiner and the person who is being examined, how would they know what is the eventual outcome of the whole process? I feel this one boils down to whether you are just “organising” an event as compared to whether you want the competition to be a learning platform for both – the participants and the Judges.
One suggestion for the organising committees could be to send reminders to the Judges asking if they have gone through the bench memo, or if they need any help. It is advisable to ensure that the Judge will be available during the fixed time slot – as this also resolves the last minute replacement issue. I feel most of the time there is an information gap between the time when the Judge gives his confirmation to be present and the scheduled time. The reality of the situation is that everyone has work-related commitments, and outside of it, personal engagements. In my experience, it is very rare to see a participating Judge has performed his own research on the relevant issues before turning up as a Judge. Therefore, I feel, follow-ups could be helpful in reminding the person that he has committed to something and needs to go the extra mile.
6. A popular narrative that exists says that how well you do in a moot, depends less on your research and more on the kind of Judges you are subjected to, such as whether they are liberal with their marking, the value they place on oratory flair, their pre-existing beliefs, etc. How much do you agree with that statement, and how much room actually exists for subjectivity when scoring?
I think the simple way to answer this question is to simply look at the team which has won the competition. While the concern is legitimate, however, mostly I see deserving teams winning such competitions. Therefore, to say that it is completely luck dependent and based on the subjective marking of Judges, would be a flawed statement. Having said that, the subjectivity of Judges cannot be completely ruled out. I think it is an 80:20 ratio between the team’s efforts and the subjectivity in marking. But at the end of the day, there is a phrase I have heard which says “the harder one works, the luckier he gets”. I will personally not discard such concerns, but I feel instead of wasting one’s time and energy on such issues, the participants should know the reality i.e. knowing that the eventual goal is not to win the competition, but to learn something, something which contributes towards your knowledge and profile. In my experience, I have seen a lot of my peers practising in those areas which they started out through their participation in moot courts. It definitely cuts both ways: one can either like or dislike the law that the moot competition is about.
In any event, I think if a team is too ambitious to negate or avoid all such concerns, then they should ensure clarifying with the Tribunal or the Bench if they have understood your argument well. In my experience, I have seen a lot of teams responding to perplexed/confused expressions of Judges by clarifying if the person has any difficulty in understanding their submission. I think these additional efforts are the only distinguishing factors that set apart an average team from a good team. Especially with virtual platforms like Zoom and Teams, I feel teams get the liberty to understand if the argument was conveyed properly from the visible signs of the Bench. In any event, I feel everyone is in the same boat of subjectivity, organising committees also try to alleviate such concerns by counting the memorial scores in preliminary rounds and to say that one team gained an unfair and material advantage over the other, would be an overstatement, in my opinion.
7. Lastly, what is the value in judging moots as a working professional? Does it lie mostly in loving the activity itself and the associated schadenfreude of grilling speakers, or can judging moots benefit your professional practice as well?
Definitely. Participating in the role of an arbitrator or a Judge, is a great learning opportunity. As a working professional/practitioner, I have hardly seen anyone having the time to go home and read topical and academic issues. Of course, some manage to dedicate time to learning in their tight work schedule as well. But I think a great way to catch up with the same is to be part of moot competitions since most of these moots are on contemporary legal issues. Through these competitions, one can get the chance to understand, become part of the discussion, contribute through his questioning and understand the other stakeholder’s perspective as well.
The other reason is that it breaks the monotony and gives a chance to interact with students and peers in the field. I see it as a fun exercise. Even better if a couple of your friends are participating in the competition. Besides, it is a great networking opportunity. Especially, in the global rounds of moot courts. For instance, I recently had the opportunity to interact with practitioners and arbitrators specialising in international dispute settlement as part of the global orals of FDI Investment Arbitration Moot. Thanks to the pandemic, most of the global orals were hosted on virtual platforms, and not everyone can travel abroad for judging/arbitrating in a moot court. I got to virtually meet with people from the US and Europe and share our common passion for dispute settlement through the moot court. With the pandemic having set the stage for us, I feel such virtual events/competitions will keep happening, giving us a wonderful opportunity to connect with people from around the world from the comfort of sitting in our rooms. These are all the pros in my eyes; and the only con that I can think of is “time”, which I think everyone can manage if they wish to.