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Siegel, D M --- "Training the Hybrid Lawyer and Implementing a Hybrid System: Two Tasks for Italian Legal Education" [2007] LegEdDig 10; (2007) 15(1) Legal Education Digest 27

Training the Hybrid Lawyer and Implementing a Hybrid System: Two Tasks for Italian Legal Education

D M Siegel

[2007] LegEdDig 10; (2007) 15(1) Legal Education Digest 27

33 Syracuse J Inter L & C 2, 2006, pp 101–121

Italy has moved, through constitutional amendment and statutory change, from a historically inquisitorial system to a mixed system that is the most adversarial in Continental Europe. Now lawyers, rather than judges, have primary responsibility for developing the facts of a case, and they have the adversarial tools of confrontation, cross examination and the ability to call witnesses. Now trial judges receive much less advance information about a case by investigative file, and they must base their decisions exclusively on live testimony. In addition, the parties now can control not only development of the facts but the outcome of the case as well, through several new dispositional procedures that allow plea bargaining.

The demands these changes impose upon lawyers and judges exceed simply learning new rules and new procedures; they require new skills of lawyers and fundamentally reshape the roles of both lawyers and judges. The changes to the roles of the participants, particularly the restructuring of the judicial role, have met predictable resistance. Judges accustomed to control of the process have fought to retain it. Prosecutors, previously charged with conducting an impartial investigation, are now expected to be partisan and to prepare a case that supports conviction.

Given these fundamental changes to the system and to the roles of its participants, how should Italian legal education respond? Simply teaching the new rules and new procedures may not foster the cultural reform required to effectively implement the new system. The adoption of a more adversarial system, with the possibility of new non-trial dispositions, demands that participants have skills related to factual investigation, development of a theory and legal arguments, trial advocacy and negotiation.

In addition to new skills, the reforms’ changes to the roles of the parties present many basic practical and ethical questions. How, for example, is the prosecutorial discretion available under the new plea bargaining procedures to be exercised in a system where prosecution is still ‘mandatory’? What ethical obligations does the prosecutor have when using these procedures? What are the obligations of the defense lawyer and judge under these procedures? Developing answers to these questions will require development of professional values that reflect the goals of the reforms.

Apart from new pedagogical challenges presented by the reforms, there are also new opportunities for research in the operation of the new system.

Based on a recent visit to an Italian university spent teaching law classes, speaking with lawyers, prosecutors, judges and academics, I suggest two steps — one pedagogical and the other empirical — in response to the systemic changes: development of trial skills classes by university law faculties and establishment of an empirical research program in the criminal process.

Under the reformed system, the parties have a high degree of control over fact development, and fact development is now intended to be done in a partisan fashion. The roles of the three principal parties in the Italian criminal justice system, the judge(s), the public prosecutor, and the defense counsel, have all changed under the reform. Judges have a considerably reduced role in both the investigation and adjudication of cases. Separate judges now oversee the investigation and adjudicate the case, and the judge’s role during the investigation is limited to enforcing time limits and vetting prosecutorial requests for arrest warrants or wiretap authorisations.

The changes to the rules and procedures from the reforms obviously must be taught, but because they change the system and the roles of the system’s participants, they require the teaching of new skills and new conceptual models for its participants. The reforms are intended to have certain effects, such as increasing efficiency, which can be measured. The changes also present new issues for study, such as expanded prosecutorial discretion and a changed relationship between the parties and the judge.

Classes, as in much of Italian university education, are large — often more than 200 students — and attendance is not mandatory.

The post-1989 reforms, particularly the 1999 amendments to Article 111 of the Constitution, demand parties in the criminal justice system have at least two new sets of skills. First, both the public prosecutor and the defense counsel must now have the skills required for a more adversarial process in which the parties develop the evidence under the principle of contradittorio. Second, the advent of alternative, non-trial dispositions requires negotiation skills.

Legal education, as professional education, is, in part, vocational, so changes in the practice of law should be reflected in changes in legal education. Moreover, changed roles will lead to questions, in the absence of specification in law, about how each party should do his job. These are questions about professional values. If the pedagogical goal goes beyond simply training students to fostering implementation of the reforms by developing the adversarial qualities of the new mixed system, the adversarial method, as well as the rules, must be taught.

Shortly after the Italian reforms began, the relationship between legal education and legal practice coincidentally came under extended scrutiny in the U.S. A gap between education and practice was recognised, and a broad program was recommended to narrow the gap. Foremost in this program was a rethinking of legal education around the teaching of skills and values. Although the data is incomplete, it suggests that much of learning how to practice law demands actually practicing it, and that those aspects of legal education that more closely mirror practice are most useful in developing practice-related skills. The American model of legal education, at least in its use of supervised practice-oriented experiences, has come slightly closer to the Italian model of supervised post-graduate internships while the Italian legal system has moved closer to the model of the American courtroom.

Faced with dramatic changes to the practice of law from competition and technology, diversification of both the practice of law into different subspecialties and the practitioners of law by gender, race and ethnicity, as well as challenges from new theoretical approaches to legal analysis in the critical legal studies movement and law and economics, the MacCrate Task Force attempted to present a broader vision of skills and values to be taught in law school. The report left open how these skills were to be taught in the curriculum. Law schools experimented with different approaches. The principal recommended means of teaching skills has been class settings other than large lecture-type classes.

A 1993 ABA study of the perceptions of U.S. lawyers on the relationship between their education and their practice, based on data predating the MacCrate report, suggested changes in legal education would have limited impact on practice skills since most practice skills were learned in practice rather than in law school.

The most recent study of new lawyers’ perceptions of the relevance of their legal education is a 2004 survey conducted by the American Bar Foundation and the National Association of Law Placement’s Foundation for Law Career Research and Education. The study is a longitudinal survey of about ten per cent of persons who became lawyers in the U.S. in 2000. The report is only preliminary, but it shows that the aspects of legal education most helpful to students were not experiences in school at all, but legal employment during summers and the school year. Of activities in the school, those most helpful were clinical courses, followed closely by legal writing instruction.

How is the adversarial system taught in the U.S.? The MacCrate Report emphasised the importance of education both before and after law school, and there is obviously some degree of acculturation to the adversary system, from high school debate teams to widespread media coverage of celebrity trials. The defining pedagogical experience of U.S. legal instruction, the first-year, common-law subjects, are generally taught with virtually no emphasis on skills training. A 1996 survey of teaching methods among U.S. law professors indicated that nearly half thought the principal goal of the first year of legal instruction was improvement of students’ thinking ability, while only fifteen per cent thought learning the substantive legal doctrine was the principal goal. Absent from these goals, as the surveyor notes, are skills associated with the practice of lawyering.

Three adversarial features of the reforms to the Italian criminal justice system might lend themselves especially well to being taught. These are (1) the partisan development and presentation of evidence by public prosecutors and defense lawyers; (2) the techniques of confrontation and cross examination; and (3) the ethical considerations surrounding plea bargaining. The preliminary data from the post-MacCrate study in the U.S. suggest one area of teaching that may be most useful in developing practice skills is clinical courses.

So, what challenges do the Italian constitutional and statutory reforms pose for the Italian legal education system? I see two: (1) development of trial skills education for the new criminal trial; and (2) establishment of empirical research in the criminal process.

One significant gap in Italian legal education produced by the new criminal procedure code and the revisions to the constitution is the lack of training in trial skills. Cross examination in particular, given the reduced role of the judge at the trial, is now an essential skill for the Italian criminal lawyer, yet cross examination in an adversarial context is essentially unknown. Italian criminal lawyers need to learn more than just cross examination, however; they need to learn the basic skills of building a case presented in an adversarial process.

The second area of development for Italian legal education arising from reform to the criminal justice system is in the area of research rather than teaching. This requires research into the criminal justice process in order to determine the effects of the structural reforms. Here are two examples of the structural changes produced by these reforms: increased prosecutorial discretion and changed interaction between judges and prosecutors. Presently, there are no guidelines anywhere in Italy for the exercise of this discretion, and the decentralisation of the office of the public prosecutor makes it very difficult to create such guidelines on more than a local basis. Research, however, could demonstrate the need for — or absence of a need for — such guidelines.

Ensuring that new lawyers are familiar with the newly required skills for operating in this system, and measuring the degree to which it delivers on its promises, seem essential tasks for Italian legal educators.


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