Todd Brower
Western State College of Law (USA)
Abstract
Professional degree programs (law, business, medicine, etc.) straddle two worlds: instruction in traditional academic knowledge and abstract principles, and education in and inculcation with professional skills and practice methodologies. The 2007 Report of the Carnegie Foundation for the Advancement of Teaching, Educating Lawyers, criticized American legal education for not teaching law students to develop professional competence and identity, while focusing too much attention on legal principles and theory. The balance of coursework in law schools has typically been weighted towards the latter and away from the former. Further, these two areas are often divided into distinct fields: doctrinal courses and clinical experiences. In my institution, this separation leads to limited student engagement in learning basic principles, as students perceive abstract knowledge to be far removed from the concrete demands of the profession and practitioners’ needs. The problem is exacerbated in student populations who, because of prior educational background or experience, have difficulty translating theoretical knowledge or models into tangible, specific professional situations and skills. This presentation will explain some uses of simulations and methods for reengaging students in their traditional doctrinal courses, helping them bridge the gap between theory and practice, and increasing their professional competence and identity.
Keywords: professional education, pedagogy, student engagement.
1. The problem
United States law schools walk an uncomfortable line. On one hand they are professional schools; training students to be attorneys and to practice law. On the other, they are graduate educational institutions, giving an advanced academic degree after the first university degree.[1] The predominant mode of teaching is question and answer according to the case method, in which students read appellate court cases and the professor interrogates students on the holdings and principles derived from the cases.[2] Developed at Harvard Law School in 1871, it has changed remarkably little in the intervening 140 years.[3] By that method, the student is supposed to develop a sense of both how cases are constructed and how the law develops from one precedential appellate court decision to others. Through this process students are said to learn to “think like a lawyer.”[4]
One problem has always been that students read only upper-level cases and are exposed to legal theory, but they neither learn the skills to achieve what actual lawyers do in everyday practice, nor do they read and employ cases as tools to accomplish specific results as is required by the demands of clients and others.[5] This problem is exacerbated by the fact that in their last two years of law school, students have generally mastered the skill of reading and analyzing cases in an academic manner, but upper-level courses continue to use the same case method of professor-led Socratic dialogue.[6] Without the need to push their skill-set further, and surmount new challenges, students become disengaged from their studies.
They graduate unprepared to join a profession that demands skills other than case analysis and the other academic proficiencies learned in law school.[7] Nor do they take advantage of the luxury of learning in a classroom and fully avail themselves of the opportunity to study unhindered by the demands of practice.
Over the years a number of reports and proposals have sought to change this dynamic.[8]
Clinical legal education, in which students work with supervising attorneys to represent (typically indigent) clients, can provide some opportunities for students to learn concrete lawyering skills.[9] The problem has always been that legal clinics are limited to very few course units out of a student’s total course load and are only taught in legal subjects where the professional clinician has expertise.
Moreover, because of the time and supervision of a small number of students per faculty clinician, they consume very significant school resources. Accordingly clinical courses are not widely available to all students and where they are, they may not correspond to students’ areas of interest.[10]
2. Simulations
2.1. Why simulations?
Simulations are mock legal problems that ape an actual concrete legal issue that a lawyer might face in practice. They are not live-client experiences and have been written to achieve concrete pedagogical goals set by the instructor, not by the vagaries of legal practice.
Essentially I had four goals for this solution. First, I wanted something portable, i.e., a structure that could be adapted to various subject matters and/or courses. That way, no matter what subject I was teaching, I could employ these methods to help resolve some of the problems listed above. Additionally, practical skills should translate across subject matters for students. They needed a skill set that could be applied with various degrees of modification in whatever fields they happened to practice.
Second, I wanted to reengage upper-division students in their law school experience and especially in my classes. I needed to trigger the intense learning curve found in the first year experience and thus force them to rise to the challenge of learning new material in a manner that would require them to think about law as a way to help people solve specific problems. New challenges spur creative thinking and reengagement. Simply providing the same case methodology provided few novel hurdles at this point in their law school career. Moreover, it reinforced a passive understanding of law as something that other people did and that students only read about. Finally, this passive understanding of principles and cases, often led to the conclusion that students understood more about an area than they actually did.
It is the law school corollary to learning a foreign language and then listening to someone else speak it.
Relatively quickly, you can get the gist of what they are saying. And so you believe that you have gained more knowledge than you truly have. But it is not until you must speak back and fully participate in the conversation, that you realize how much more you still have to know.
Third, I needed to supply students with a better introduction to the skills necessary for practice after graduation. Unlike many other countries’ legal education systems, American law students to not article, clerk, or serve an apprenticeship period before practice.[11] They may take a state’s bar examination after law school. And if they pass it, they are certified to represent clients in all aspects of practice, from drafting documents, wills, representing clients in court and in any field of law – all without further study or barriers. As an ancillary goal, I wanted them to begin to think of themselves as members of the profession, rather than as students learning doctrine. Doctrine is useful and necessary, but it is instrumental and not terminal. It is a tool that serves members of the profession and not the final product.
Kerper noted: “[A]s every practicing lawyer knows, clients do not present themselves in lawyers’ offices with well-defined fact patterns, clear adversarial positions, or precisely formulated objectives or goals. In short, real-life clients look nothing like appellate cases.”[12]
Finally, although true clinical education might be seen as the gold standard to instill professional behavior and competencies, it is both expensive and limited in the ways I outlined above. I wanted to provide a bridge between the traditional classroom experience and the clinical setting. Accordingly, I developed the following simulation approach.
2.2. The structure of the course simulations
In order to deal with the lack of student engagement and to help prepare them to start their professional lives after law school, I structured my Employment Discrimination Law class differently from the normal lecture course. For a class of 16-20 students, I divided the students into four different law firms, named A-D. Students were randomly assigned to a firm and did their written and oral work as a single entity. I also divided the course material into projects that spanned four 1.5-hour class sessions running over a consecutive two-week period. This necessitated reducing the coverage of material in the course, but increased the depth and sophistication I demanded of students. I chose material from each of the major sections of the course to compensate partially for lack of in-class coverage.
Each project had four components and each law firm had primary responsibility for a different component of each project. Those responsibilities shifted for each project so that at the end of the semester each group would have had responsibility for each of the various components at least once. Each 1.5-hour class covered one component of a project, so that over the two-week project each law firm would be the major contributor one session and have secondary or supporting roles during the other three classes. This ensured that each student and each group had primary responsibility in each of the four skills and provided enough variety to retain student interest. Because the law firms cycled through each of the areas, students got enough novelty to push their boundaries for learning, and still have enough repetition to reinforce skills being taught.
The components in each project shared certain basic similarities, but varied in particulars according to the specific demands of the project outcome. The first component was a set of readings, appellate cases, journal articles, etc. that described the subject matter and legal principles to be used in
resolving the project. The group responsible for that week needed to synthesize and present that material to the others. The other groups also read the material and were required to submit and ask questions and actively participate in the class discussion. This was the session most like the traditional law school class.
However, the students were responsible for presenting the material and teaching it to the class and were not merely passive note-takers. At the end of the hour, the professor told the students who would be coming to the next session to be interviewed and a brief mention of the specific topic.
As an illustration, students might read the major cases and a section of treatise material on the Bona Fide Occupational Qualification [BFOQ], a doctrine that allows an employer an exception to the prohibition against discrimination on the basis of sex or national origin. For example, a French restaurant might hire only male waiters that were native Frenchmen because it was necessary to the essence of the business to have that authentic bistro atmosphere.
The second component involved fact gathering from a mock client, played by myself or another faculty member. The client had a confidential packet of information that the primary law firm was supposed to elicit through the fact gathering process. The client also came to the law firm with a concrete problem or goal to be accomplished for the project. In this component, the skills involved were interviewing and factual investigation, how to talk to clients and to gather information in a manner that was be useful, efficient and would build confidence with the client or other interviewee (e.g., witness, expert). The other students took notes and could suggest follow up questions at the end of the session.
They were also tasked with critiquing the performance of the primary group, to serve as feedback for the interviewers on techniques, skills, and the more intangible aspects of client contact.
In the BFOQ illustration, students interviewed the owner of a business, The Lovely Lady Health Spa, who wanted to hire only women to work in his female-only health club. All employees, from reception staff, to personal trainers, to accountants, to janitorial or cleaning staff would be women.
Students would need to use the criteria discussed in the cases to ask appropriate questions about job duties, hours, contact with female clients in order to make an informed decision about the availability of the BFOQ defense and to give the client advice on its possible success, to assess the strengths and weaknesses, and to figure out how to proceed accordingly.
The third component was centered on discussing how to best meet the needs of the client in the form required by the project. For example, if an evidentiary motion needed to be filed in court as the outcome of the project, the primary group presented the requirements for that motion and any additional documentation, etc. Tactical considerations and practical issues were also part of the discussion. If there were issues that were unclear in light of the problem and occurring as a result of the prior components, those issues could be discussed here as well.
Once again, in the BFOQ example, students talked over the strengths and weaknesses of the application of the BFOQ doctrine to each of the job categories and strategized about how to approach the client and/or structure the business to best accomplish the client’s goals within the strictures of the law and existing cases. They also discussed the purposes, formal requirements, and potential pitfalls for a
“client letter” – a particular form of legal advice or legal opinion sent to a client in response to a question like in the Lovely Lady scenario.
The fourth and final class session/component was a presentation of the required written work product (e.g., the motion, client letter, pleading). All law firms drafted a written work product and submitted it to the professor. However, the primary law firm for this component also submitted their written work to the other firms/students for their evaluation and critique. The class discussion focused on the primary group’s written work and they had to defend and explain the choices they made and the difficulties they encountered in making their decisions. Because all groups had also produced written work, they compared and contrasted their solutions to the issues raised by the project. In essence, the primary group’s work served as a foil for the discussion of the various ways in which different lawyers might resolve and handle the same problem.
In the BFOQ problem, the client letter drafted by the primary group was distributed to all students before the class session so that the other groups could compare that letter to their own versions.
In class conversation centered on why students in the primary group made the decisions they did in their client letter, their choice of language to communicate with the client, particularly if there were negative opinions expressed as to the possible legality of the client’s proposed actions. They also discussed what alternatives they proposed and rejected, and why those decisions were made. Students in the other groups then shared their written solutions to these same problems and all participants debated the positives and negatives, the risks and rewards of the common task, and the groups’ various client letters.
One common aspect of all components was that students needed to stop thinking of cases and legal doctrine as abstractions, but as implements to accomplish other tasks. Once they realized that they would have to use and apply those concepts to solve a concrete problem, the details and mechanics of how exactly doctrine worked became significant. Moreover, the interrelationships between other legal
courses they had taken and this particular class became important, since in order to file an evidentiary motion, for example, one needed to know what the rules of evidence require and the civil procedure requirements for motion practice.
Another common trait of all components was that much student learning occurred outside the classroom and away from the professor’s direct guidance. This helped control some of the passivity students sometimes exhibited in the traditional classroom experience. In that realm, the students serve as docile receptacles into which the professor pours knowledge. Here, in contrast, the students lead discussions and have key accountability for teaching their peers. This is especially striking in the first component, the one that most closely mirrors the typical law school pedagogy. As anyone who has taught a class can attest, one really figures out what a subject is when one must teach it to others. This new challenge provokes student learning beyond the strict limits of the readings provided.
3. Extrapolation to Other Disciplines
It is unlikely that the particular constellation of problems in American law schools is replicated to the same degree in other disciplines or in other countries.[13] Nevertheless, many of the same issues faced in my school are common across educational institutions.[14] Student disengagement and passivity undermine classrooms in other than American law schools. Creating novel experiences and opportunities for student leadership roles helps counter those weaknesses.
Further, treating students as fledgling experts and new entrants in their discipline begins to inculcate professional values and mores as well as particular abilities and skills.[15] While directly relevant to other institutions like medical and business schools, other academic departments with institutional standards face similar challenges as to how to train young persons in the canons and touchstones of professionals in the field, when those young persons are not yet fully credentialed or licensed or have not yet begun their careers.
References
[1] Sullivan, William M, (2005). Work and Integrity: The crisis and promise of professionalism in America (2nd ed.); Maxeiner, James R., (2007). Educating Lawyers Now and Then: Two Carnegie Critiques of the Common Law and the Case Method, International Journal of Legal Information 35: 1; Miller, Nelson P. (2008). An Apprenticeship of Professional Identity: A Paradigm for Educating Lawyers, Michigan Bar Journal 87: 20.
[2] Sullivan, William M, Colby, Anne, Wegner, Judith Welch, Bond, Lloyd, and Shulman, Lee S., (2007). Educating Lawyers: Preparation for the profession of law (The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions Program).
[3] Sullivan, William M, Colby, Anne, Wegner, Judith Welch, Bond, Lloyd, and Shulman, Lee S., (2007). Educating Lawyers: Preparation for the profession of law (The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions Program).
[4] Maxeiner, James R., (2007). Educating Lawyers Now and Then: Two Carnegie Critiques of the Common Law and the Case Method, International Journal of Legal Information 35: 1; Gantt, Larry O. Natt (2007). Deconstructing Thinking Like a Lawyer: Analyzing the Cognitive Components of the Analytical Mind, Campbell Law Review 29: 413.
[5] Kerper, Janeen, (1998). Creative Problem Solving vs. The Case Method: A Marvelous Adventure in Which Winnie-the-Pooh Meets Mrs. Palsgraf, 34 California Western Law Review. 34: 351.
[6] Sullivan, William M, Colby, Anne, Wegner, Judith Welch, Bond, Lloyd, and Shulman, Lee S., (2007). Educating Lawyers: Preparation for the profession of law (The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions Program).
[7] Dopierala, Jessica, (2008). Note: Bridging the Gap Between Theory and Practice: Why Are Students Falling Off the Bridge and What Are Law Schools Doing to Catch Them?, University of Detroit Mercy Law Review 85: 429.
[8] Sullivan, William M, Colby, Anne, Wegner, Judith Welch, Bond, Lloyd, and Shulman, Lee S., (2007). Educating Lawyers: Preparation for the profession of law (The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions Program); Maxeiner, James R., (2007). Educating Lawyers Now and Then: Two Carnegie Critiques of the Common Law and the Case Method, International Journal of Legal Information 35: 1.