Introducing legal clinics in Olomouc: the application of common law clinical models in a civil law system

Vendula Bryxová and Maxim Tomoszek (Palacky University, Olomouc, Czech Republic) are members of a team developing practical legal education methods in Olomouc. In this paper presented at Learning in Law Annual Conference 2007 they describe the design of a clinical programme, drawing inspiration from clinics operating in common law systems. The common law experience could not always be simply transferred into the Czech legal environment, with problems deriving from differing concepts – of the legal education system, of the cultural environment and of the legal profession – and not least from the mentality of both teachers and students.

The clincical programme in the law faculty at Palacky University is part of a project developing practical legal education methods. In designing the programme inspiration was drawn from clinics operating in common law systems, however it is not always possible to simply transfer the common law experience into the Czech legal environment, a civil law system.

Four clinics are currently in operation in the faculty:

• legal advice office (live client clinic) – 46 students, six supervisors, six sections
• administrative law clinic (mixed model) – 10 students, three supervisors; specialises in administrative and environmental law in cooperation with a local NGO
• refugee clinic (mixed model) – 10 students, two supervisors; specialises in foreigners and asylum seekers in cooperation with a local NGO
• human rights clinic (mixed model) – 16 students, three supervisors, two sections; works in cooperation with a local NGO

Features of a civil law system

1. Constitution – the constitution is not particularly long standing. It is easily amended and regulates the organisation of the state and the relations of state and citizen in detail.
2. Sources of law – comprehensive codes adopted by the legislature; judge made law (precedent) has only a minor influence.
3. Courts – has specialised courts, including a constitutional court; special position of judicial review.
4. Judicial procedure – based on the inquisitorial principle; decisions by jury are the exception and the judge has an active role.
5. Judicial decisions – no character of precedent; not as comprehensive or persuasive as a common law system.
6. Judges – students can apply to the judicial profession straight after law school; following an obligatory period of practice and an exam they become judges for life.
7. Role of lawyers – the admission of lawyers to practice before courts is restricted.
8. Reasoning – the main goal of lawyer is to subsume the case under certain provisions of a statute.
9. Legal education – students go to law school immediately after secondary school; study based on doctrine, knowledge and interpretation of the codes.

Issues arising from the differences between civil and common law systems

1. Possibility of court representation – in for example Berkeley’s death penalty clinic students represent the client, making clinic very attractive to students. This is not possible in the Czech Republic, where advocates are very respected, leading to various barriers and restrictions.
2. Liability – it is very difficult to avoid student liability for advice given to clients. This does not seem to be a problem in common law systems; we are not certain why.
3. The common law system is based on precedent. In civil law systems it is not important to search for judicial decisions. Our students work with abstract law, with codes, whereas in common law systems students work with cases – a much more practical form of education. Some areas of law, such as EU and human rights law, are closer to the common law system, making a different style of education possible. Olomouc’s civil law clinic operates on a live client model, with students advising clients, whereas the refugee clinic is more lecture oriented.
4. In a civil law system the lawyer is supposed to search for abstract and more general solutions. When our students are preparing a case they must find provisions in different statutes, interpret them in context and apply them to the case. In a common law system students aim to find a case with the same facts as the case they are working on to provide them with the solution they need. This is one of the reasons why students are able to represent the client, as in many cases the argumentation in court means presentation of proper precedent. However in civil law systems it is essential to have complex and contextual knowledge of many statutes and codes, to be able to use general principles of law, etc – calling for strong skills in the areas of legal thinking and argumentation, skills which are underestimated and currenlty not present in the curriculum.
5. In common law systems the adversarial nature of proceedings and the passive role of the judge means that lawyers have to be more skilful; in civil law systems, even if lawyers make mistakes the judge can (and should) set them right.
6. The obligatory period of practice required for many legal professions in civil law systems decreases the need for skills development in law schools. In common law systems lawyers have to be ‘ready made’ straight after law school.

Issues arising from social and cultural differences

1. Live client clinics – a good solution in the Czech Republic, as legal aid is not extensively regulated and there are a lot of people in need of free adivce. Olomouc Law Faculty set up the first live client clinic in central Europe in 1996.
2. Educational expectations – the education system in the Czech Republic is focused more on the transmission of theoretical findings than the UK system, where the stress is more on communication, activity, the application of knowledge and the development of skills. However, the students’ and teachers’ expectations concerning their work cannot be left out of consideration.
3. Evaluation – intensive contact between students and teachers is missing, so there is a need for a special evaluation system. A reflective diary has proved successful, although students do not know how to reflect, and some of them do not want to reflect (they are afraid of sharing their feelings and want to protect their privacy).
4. Most teachers are not advocates – experienced specialists do not teach, because they are too busy and it is not profitable. As a result most law teachers have not experienced the things they are teaching and do not have the experience in using legal skills. Some students do not have confidence in young teachers who have not practised the law.
5. Time spent in the clinic – in the US students spend up to 20 hours a week in the clinic, and gain up to half of the credits required for one semester. In Olomouc study is more time consuming and covers many branches of law, meaning the students have less time for clinic (around 4 to 6 hours a week, gaining around an eighth of the credits for one semester).
6. Age of students – Czech students start their legal education at the age of 19 and go through clinical education at the age of 21-23. In the US students go to law school after four years of college. They are around 22 when they start legal education and 24-25 in the clinic.
7. Student motivation – in the Czech Republic most law faculties are part of ‘public universities’ and are free of charge – could this have any effect on student motivation? If they had to pay for their education would they be more active? (There is no tradition of paid education in the Czech Republic.)
8. Knowledge vs skills – the stereotype of how people see a lawyer is represented by knowledge, not skills – the old generation of lawyers does not know anything about skills, and so cannot teach or assess them.
9. Teaching skills – in the Czech Republic there are no skills courses at any level – in the US even school students undergo skills development. Hence our students have very little sense for skills, and very little expectation about how much skills they will learn and how much they should improve their skills. There is no tradition in teaching legal skills. A few newer modules include skills, however they are not integrated.
10. Legal ethics – during the communist period all traditional concepts of legal ethics were violated. Now we are starting from the beginning again, however unfortunately we are living in postmodern times – everything is relative. Ethics have been neglected, meaning the general level of morality is likely to decrease.
11. Educational methods – another negative phenomenon, the fear to share one’s own opinion, coupled with ‘stádovitost’ (desire to merge with the crowd, not to differ), has been inhereted from the communist regime. This has an effect on educational methods – teachers do not ask students questions, and seminars look very similar to lectures.

Conclusion

Common law clinical models are very important sources of inspiration for us, in particular the educational methods used. Most of the differences between clinical legal education in the Czech Republic and in common law jurisdictions do not arise from differences between the two legal traditions, but rather from social and cultural differences, and in particular from different systems of education.

We must be careful not to mechanically transpose experiences from the common law system, but rather to sensitively extrapolate problematic features and avoid them. So far we have not encountered many features it has been impossible to transpose, although some have been considerably modified. Differences deriving from cultural and social diversity and differing educational systems can also be overcome, however it will also be important to introduce changes at lower levels of education.

Last Modified: 9 July 2010