Viva the Viva: Oral Examinations in Contract Law

Abstract

In light of the dependence of lawyers upon the spoken word, whether it be in presenting argument in court, conducting negotiations, or conveying advice to clients, it is perhaps surprising that traditionally law schools assess students primarily on their written rather than their oral expression and presentation. Commonly the emphasis is upon methods of written expression such as examinations and research assignments. Assessment of oral expression, if present at all, is usually through participation in a moot as a barrister or presentations to or participation in class. Oral examinations (“viva voce”) are seldom an option and are reserved, if at all, to the role of being a supplement to some other form of assessment. At the Queensland University of Technology Law Faculty, assessment of the 300 first year students enrolled in the unit Contract Law prior to 1993 comprised of two examinations (a mid year examination worth 30% of the total marks and an end of year examination worth 50% of the total marks) and a written 2,000 word assignment (worth 20% of the marks). Students could choose to participate in the Faculty’s mooting programme as either a solicitor or barrister in lieu of submission of a written assignment, although the number of moots in Contract Law was restricted to three. Accordingly, there was a limit of 24 places for mooters in Contract Law, of which only 12 were available to students wishing to act as counsel. In 1993 the four members of the Contract Law teaching team decided to provide more opportunity for assessment of students’ oral expression and presentation. In addition to assessing performance in small group tutorials, a formal programme of oral examinations by panels each comprising two academics was introduced as an alternative to written research assignments and moots. Thus, rather than fulfilling merely a secondary role, vivas were presented as a direct alternative to written assessment by way of assignment, and provided a forum in addition to the limited opportunities available in moots in which students could display oral skills.