Thursday, March 21, 2019

5 Habits That Never Change In Malaysian Moots

It has been 15 years since I was first introduced to mooting. True, mooting has been one of my favourite and most memorable activity in law school. But I would never had guessed it would continue to play a part in my life until today.

Look, I'm really not a moot geek or fanatic. After graduation, I was fully focused on litigation. It's only recently that I've been drawn back into mooting again. Unlike some others, mooting is not a lifelong obsession.

Nevertheless, now that my work in University of Malaya (UM) centres around mooting, I'm beginning to appreciate mooting at a deeper level. Mooting is a reflection of legal practice. And through mooting, I'm able to understand the psychology of legal minds - lawyers, judges, and lecturers.

One thing that never ceases to amaze me is how little the state of Malaysian moots has changed over 15 years. On one hand, it's nice to know that good 'ol traditions are still being kept alive. But on the other hand, it may be a sign that we're stuck in the past whilst other jurisdictions around the world has overtaken us...

Lord Kok of Ipoh (coming soon to a moot court near you)

* * *

1. Introductions

Last year, right after a solid performance by Team UM in the final round of an international moot competition, an eminent retired Malaysian judge came up to the team to congratulate us. Then the ex-judge frowned, and gently rebuked our team, the Claimant, for not introducing the Respondent's counsel. (Anyway, we won.)

Now, we are well aware that such is the convention in Malaysian courts. But the competition was an arbitration moot, and none of the arbitrators found fault with us and other teams for not doing so. In fact, I remembered another of our team in another moot once being rebuked by a practitioner hailing from a civil law jurisdiction for introducing the other side - the rationale being that it's not right to deprive them of the chance to properly introduce themselves...

2. Summary of facts

It's customary in Malaysia for the first counsel of to give a summary of facts of the case, or at least, ask the judge if they wish to hear such a summary. If you skip this step, you may risk incurring a stinging rebuke from the judge during feedback.

Once again, it's a Malaysian thing. Foreign teams rarely do this, and foreign judges rarely ask for it. In fact, I once witnessed a judge even snapped back at a mooter: "It's your case, counsel. Run it however you want."

3. Formalities

Malaysian mooters tend to adopt the same boring set of vocabulary:

"I beg your indulgence"
"Much obliged"
"We humbly submit"

It's not their fault, though. If they say words like "apologies", "thank you" and "we say", they'll be cut down for disrespecting court decorum. In fact, there was a retired judge which went on lengthy tirade against a mooter for addressing him as "My Lord" instead of "Yang Arif" as he preferred.

Yes, Malaysians really care a lot about titles...

4. Posture

If a layman only entered the moot court towards end to listen the judges' feedback after counsel's submission, he could easily mistake a moot to a military boot camp:

"You should stand straight, and not lean to one side"
"You wave your hands too much"
"You smile too much"

Foreign judges never comment on such trivial, superficial things. In fact, top international mooters have this cool, confident habit of sipping water (without even asking for permission) whilst they pause to take questions from the judges.

I'm pretty sure a Malaysian judge would've given them an auto-loss...

5. Voice

Lastly, Malaysians are easily impressed by good voice projection. Loud is good. You have a naturally soft voice? Too bad, you start at a disadvantage.

In stark contrast, foreign judges are less concerned about voice control. Neither are they pedantic on pronunciation. So long as your words are audible and comprehensible, that's good enough. What matters more is the law, not language. Speaking with an American accent won't earn you bonus marks.

The golden age of Malaysian legal practice - Eusoffe Chin (Chief Justice) & VK Lingam (Chief Justice Special Counsel)

* * *

By now, you can trace the pattern. Malaysian legal practitioners tend to be more critical on style, rather than substance.

That's not necessarily a bad thing, of course. Communication skills are essential to the art of advocacy. Our adversarial trial system requires a certain degree of showmanship and grandstanding. Our courtroom is still heavily steeped in ceremony.

But we can't disregard the inescapable fact that litigation practice worldwide is ever evolving. Plain language is gaining ground. The shackles of archaic decorum is loosening. Wigs and gowns are consigned as relics of the past. Lawyers are not expected to grovel before the judge like a subservient subject pleading mercy before a lord of a castle.

Hence, whilst some traditions are still worthy of keeping, there are some which evidently aren't. Soul-searching is called for. There are many outdated habits of Malaysian legal practice that needs changing.

And such change can - and should - start at the moot courts.

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