Clinicalising the classroom: getting value for money

Scott A Taylor, University of New Mexico

This paper traces the history of clinical legal education and highlights its value as a form of experiential learning. It puts forward an ‘ideal model’ for the clinical experience, illustrated by an example from American law schools.

The value of clinical legal education

• Provides an effective learning environment – active experiential learning provides a student with an especially rich learning environment in which he or she acquires knowledge, skills, and values at a rapid pace. This rapidity in learning occurs because the process of observation and action provides deeper and more lasting memories than mere reading or listening (passive learning).
• Contextualises the classroom – active experiential learning also improves a student’s classroom and book learning by showing the value and relevance of knowledge. In the context of law, the student sees and experiences how legal rules and processes determine outcomes. The student begins to catch glimpses of how the overall legal system may affect broader social and economic conditions against a backdrop of achieving just results on an individual level. These experiences increase a student’s curiosity and add motivation to learn more in order to achieve a greater understanding.
• Launches the student into the ‘reflective practitioner’ style of learning – the hallmark of a professional (a practicing member of a profession) is expertise and artistry in problem-solving in a particular context. For the lawyer, the artistry of lawyering occurs during problem solving in a legal context. The technical rational rules of the legal system and the legal profession are not sufficient in themselves to enable a lawyer to expertly engage in legal practice – to learn and to practice the ‘art of lawyering’. Instead, the neophyte lawyer learns the ‘art of lawyering’ through experience, reflection, and, one hopes, the assistance and critique of colleagues, mentors, coaches, teachers, and supervisors.

The classroom, books, and examinations together constitute an especially effective and efficient system for learning the technical rational knowledge that a lawyer needs to master. The ‘art of lawyering’, which combines technical rational knowledge with a variety of other professional skills, values, and knowledge, can be learned only through experience, through doing. In his book Educating the reflective practitioner Schön suggests that the acquisition of professional artistry occurs best in a ‘studio’ environment, where the professional-to-be can rehearse, perform under the supervision of a coach, and then reflect on the experience and its lasting value. For legal education, Professor Schön would no doubt suggest that the ‘studio’ of learning should include the places where lawyers do their work (law offices, chambers, courtrooms, boardrooms, legislative chambers, agency offices, charities etc) and that law students under some supervision should engage in the work of lawyers.

Clinical legal education provides the academic teachers of future lawyers with the opportunity to begin the process by which the lawyer-to-be acquires the ‘artistry’ of being a lawyer. Because law, like most professions, involves rapid and continuous change, the lawyer wishing to maintain competence in the ‘art of lawyering’ must embark on a course of lifelong learning. Learning how to become a reflective practitioner enables the lawyer to continue learning through the course of his or her professional life.

The definition of clinical legal education via a short history

Literally, a clinic (clinique) is a place where a medical doctor visits a patient while in a hospital bed. The word originates from French, and literally means ‘bedside’. In medicine and in law, clinics became to mean places where poor people received medical care or legal services. American law schools began operating clinics of this kind at the beginning of the 20th century, with the thought that law students could serve the legal needs of the poor and learn lawyering at the same time.

The ‘service versus learning’ goals of clinics remain a matter of continuing dispute among clinicians. In the 1960s the American clinical legal education movement emerged full blown, so that now almost all American law schools have one or more clinical programs. In general, however, clinical legal education is neither pervasive nor dominant in the education of American law students. Many students never take a clinical course, and for those that do the ratio of academic credit for clinic compared to all law school courses is usually 1:15 (roughly 7%). Whether the clinical method includes simulation courses is a matter of debate. This author prefers to exclude simulation from the definition of clinical legal education on the grounds that simulated exercises, although requiring active learning and participation by students, do not involve real legal experiences in which the action and participation of lawyers affects outcomes. Only where real outcomes are involved can the student gain the kinds of insights necessary to learn how to be a reflective practitioner.

Whether clinical legal education requires a student to assume the role of a lawyer and to undertake representation of a client is also a matter of some dispute. This author, although conceding that the lawyer/client relationship is at the core of much of what lawyers do as professionals, believes that actual clients (although desirable) are not necessary for many forms of clinical legal education. So long as the student observes and participates in some aspect of a legal process, clinical legal education takes place. Under this view, clinical legal education is ‘a law student’s observation of and participation in a legal setting where the participation can have an effect on outcomes’. So, for example, a law student can make a written comment on pending legislation and send this comment to the appropriate legislative member or office for consideration. The comment, depending on its content, persuasiveness, and handling, can actually affect the form and passage of the legislation. The student can undertake this task without a client. Admittedly, the presence of a client with specific views about the pending legislation would enrich the experience for the student.

Finally, clinical legal education can take the form of an ‘in-house’ clinic or externship placement. Because both in-house and externship clinics involve active participation by students, both forms are clearly within the definition of clinical legal education. The concern of many clinicians is that externships, because the participation of the academic is minor or non-existent, may have uneven or consistently low educational value. Having said all this, I propose the following as a definition of clinical legal education; ‘a student observes and participates in a real setting involving legal content’.

The ideal model

The ideal clinical experience should involve four sequential steps:

1. The student observes the process and the practice that are the subject matter of the clinical experience.
2. The student participates in the process under supervision followed by a critique.
3. The student participates without supervision and engages in self-critique.
4. The student reflects; assesses the value and effectiveness of the learning experience, generalises the specific experience and places it into a larger theoretical framework.

Depending on the student and the subject matter of the experience, repeating any or all of these steps in or out of order may be valuable. For example, re-observation of the process after completing all four steps may provide powerful insights because the student will have a better idea of what to look for. Repeating step 3 may be beneficial for a student having difficulty with a particular skill or its application. Repeating step 3 may also be especially good for the student wishing to reach a high level of competence through repetition, experimentation, and reassessment.

Assessment

Effective assessment of the clinical experience is extremely difficult. In a perfect world, specific supervisory critique, self-critique, and reflection (augmented by teacher feedback) should be adequate assessment (measurement of the degree of success) to provide the student with sufficient information regarding professional development. This style of assessment, however, is not the norm and runs the risk of permitting students to not take the experience seriously. Therefore, some standardisation of assessment may be necessary.

Implementation

Clinicalising the classroom is doomed to failure if it is expensive or requires too much staff time. Implementation will require creative problem-solving, given a backdrop of limited resources in terms of money and staff time. Accordingly, a clinical experience designed to add on to an existing classroom course will need to provide a limited time commitment for the instructor and use existing resources requiring no additional expenditure of funds. In general, the experience should be limited in scope and have sufficient focus to enable the student and the supervisor to succeed.

To clinicalise the classroom, the designer should follow these steps:

1. Take an inventory of possible learning venues within the geographic locale where students have practical access to the experience.
2. Contact and consult potential participants, attempting to identify reasons why they would want to participate.
3. Design the learning experience consulting with participants along the way to insure theircontinuing support.
4. Start the learning process.
5. Perform mid-course corrections as necessary, which may require interim feedback from students and from articipants.
6. Evaluate the success of the effort based primarily on the reaction papers of the students.
7. Start with step one again when reusing the design.

Example: volunteer income tax assistance

An elective course taught at all American law schools is federal income taxation of individuals. About 50-60% of all American law students take this course in the second or third year of the three year period of law study. The Internal Revenue Service (IRS) operates a program in which volunteers meet with low income taxpayers and prepare their income tax returns. This IRS program is known as volunteer income tax assistance. The IRS provides training, testing, and certification of volunteers. IRS also runs sites where the services are performed and provides volunteers with the necessary materials. All returns that a volunteer prepares are reviewed by an experienced volunteer.

A law teacher teaching the federal income tax course could require all of his or her students to participate in this IRS program and require students to write a reflection paper. The teacher could require that the student prepare a minimum number of returns, such as 5, 10, or 15. In this example, the teacher would only have to contact the IRS, get information on training times, write up a requirements flyer to give to students, and then read the reflection papers at the end of the process. Because this program would require substantial student time, the teacher may want to cancel some lectures. This could help pay back for the time needed to read and comment on the reflection papers.

Last Modified: 12 July 2010