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Lewinbuk, K P --- "Can successful lawyers think in different languages?:incorporating critical strategies that support learning lawyering skills for the practice of law in a global environment" [2008] LegEdDig 39; (2008) 16(3) Legal Education Digest 34


Can successful lawyers think in different languages?: incorporating critical strategies that support learning lawyering skills for the practice of law in a global environment

K P Lewinbuk

41 Law Teacher 3, 2007, pp 275–286

It certainly does not come as a surprise that a number of cultures have a different outlook on the role of lawyers in their societies as well as the importance, if any, of the legal profession as a whole. However, one seldom appreciates the tremendous range of status, opportunities, job descriptions and prerequisites for becoming a lawyer and maintaining one’s professional status in various parts of the world.

Different criteria are applied to allow a law graduate admission into the legal profession. For example, to become a practicing lawyer in Peru, one does not need to pass a Bar examination as is required in the United States, or obtain licenses or permits that are instrumental to receiving a law license in the Russian Federation. Similarly, to become a practicing attorney in Spain, one has to receive a law degree and then formally apply for admission to the profession. No post-graduate examination or training course is required. In contrast, to earn admission to the legal profession in Japan, candidates have to pass the bar examination and complete a one-year practical training course at the special Legal Training and Research Institute, which is currently administered by the Japanese Supreme Court. In addition, they have to successfully pass a completion test that is prepared by the Legal Training and Research Institute. In the past, bar passage rates in Japan have been shockingly low: approximately 23 per cent of the overall number of exam takers in the 1980s and 1990s. Today, both the Japanese legal profession and education are undergoing substantial changes. Specifically, the Justice System Reform Council determined that the ‘legal profession in Japan is too small,’ and, as a result, proposed a new bar passage rate of approximately 70 to 80 per cent and attempt to secure ‘3,000 successful candidates for the national bar examination annually.’ Despite this recommendation, the Ministry of Justice initially announced in 2005 that the bar passage rate ceiling would only be 30 per cent. However, after a number of law schools fought the decision, the Ministry decided to raise it to 40 per cent.

Social perception of lawyers also varies substantially among the public in different parts of the world. For example, in Peru, a survey revealed that 75 per cent of the people interviewed believe that the quality of Peruvian lawyers was ‘mediocre, bad or very bad.’ Despite the perceived nature of lawyers as ‘hyper-aggressive over-billers [which] is a spillover from the United States,’ Canadians believe that the ‘world’s developing countries look with envy to Canada’ and see its legal system as the ‘foundation of it all.’

In the United States, ‘[a]ttorneys, who were once genuinely trusted and respected by the public, now find themselves struggling to preserve their professional image and regain their clients’ confidence in their ability to provide high-level legal services.’ It is sometimes difficult for American lawyers to preserve their image since they are ‘frequently accused of breaking the professional oath and are commonly compared to used-car salesmen.’

The above description of the status and image of lawyers in various countries, as well as a basic general knowledge of legal systems and cultures worldwide, demonstrate that lawyers go through different educational and training experiences to prepare them to join the ranks of legal professionals, where they will be expected to carry out their duties as attorneys. In addition, diverse legal systems show how different educational backgrounds and legal or ‘lawyering’ skills are required.

Understandably, legal education attempts to fulfil the needs of the changing legal profession and ‘internationalisation is no exception.’ For example, in 1999, at least 68 law schools in the United States offered special graduate programs to foreign applicants, and more than 50 per cent of the programs were created exclusively for foreign applicants. Such programs continue to grow in size, as well as in number. In fact, law schools that provided a new avenue for globalising legal education in the last half of the decade have simultaneously provided an ‘additional site of interaction for lawyers trained in different national systems.’

When referring to cultural contexts and background, it is important to understand that, when applied to lawyers, the concept is two-fold. First, as discussed above, it incorporates one’s home country’s perception of the role of the legal profession as a whole as well as an image of a lawyer (including the training and education that is necessary to join the ranks of legal practitioners). This aspect is critical to one’s ability to learn and comprehend because an individual’s view of her profession is usually reflected in the way she studies. Second, it incorporates one’s general cultural perceptions unrelated to her choice of profession. It is the understanding of both components that is essential to legal education of international law students, and it is its absence that results in an unsuccessful learning experience. Accordingly, legal educators should be concerned with understanding their students’ background in order to accomplish their course objective.

Based on a significant and growing number of non-native speakers of English language studying law in American universities, teaching students for whom English is a second language (‘ESL students’ or ‘international students’) has become a major area of interest to legal educators and scholars in the United States. Having originated from a number of strategies and suggestions that have been previously implemented in non-law related undergraduate and graduate programs, a number of theories have been developed that are applicable to teaching lawyering skills under these circumstances.

Experience has shown that a couple of major challenges evolve when ESL law students are being taught their lawyering skills, such as legal research, writing and analysis in American law schools. First, due to the fact that most ESL students come from different legal systems, they often face hardships in adopting the type of legal thinking that is appropriate in a common law legal system, which operates using stare decisis or the doctrine of precedent. To adopt this particular thinking pattern, the students are required to use a standard legal writing format that is rather rigid and does not allow for much flexibility. Many ESL students that are used to a freestyle writing find it very difficult to stick with the specific, and at times rigid, requirements of the format. Second, many ESL students that come to the United States to study law are hoping to accomplish the level of professionalism that would make their oral presentations and written work product indistinguishable from work product of attorneys who are native speakers of English, thus not arguably putting them in a disadvantage because they were raised and educated in another country. It appears that only a few of the ESL students that received a part of their legal education in the United States are able to accomplish this goal, while others express their legal analysis and ideas in a way that makes them stand out from that of a lawyer who is a native speaker of English.

What can law professors do to assist their students in adopting the common law-type lawyerly thinking, writing and analysis? Which techniques can be used in the classroom to allow the students to better relate to the actual common law system and the way it operates? ‘Legal Storytelling’ is a new and developing area of legal education, which involves the use of either fiction or nonfiction stories in the law classroom aimed at deepening the students’ understanding and perception of the legal culture. Both students and professors participate in storytelling. The idea behind storytelling is to use pop culture, such as books, movies or music, to educate students on various aspects of the law. Specifically, it may include the following: providing background information for parties in decided cases; providing factually similar, but distinguished, stories regarding cases studied in class; discussing the similarities and differences in factual situations addressed by various courts; telling stories about experiences in the legal world; and, mainly, discussing law-related movies, music, literature, etc. with the goals of receiving an additional insight into the life, structure and development of a certain society and legal culture.

The goals of teaching legal skills using the storytelling approach include focusing on the narrative form of the law (beginning, middle, end); discussing the language of storytelling (characters, conflict, theme, resolution, point of view, audience); emphasising the persuasive nature of the law; encouraging dialogue and the sharing of experiences between the students; and emphasising critical thinking and problem solving skills. Law professors should consider incorporating storytelling into their curriculum for a number of reasons. First, it is critical to acknowledge the presence of narrative in the legal world. Specifically, lawyers begin by listening to client stories and searching for the legally relevant factors.

Another critical reason why storytelling might be considered in teaching legal skills to ESL students is because storytelling is something everyone can relate to, the law is not, as the law is often abstract. Having something to which to relate abstract concepts forces students to internalise them and to ground the new, abstract ideas of the law, rather than simply go through the motions the professor asks of them. The universality of personal experience draws students into the topic. Another compelling reason to incorporate the storytelling method is that emotional involvement results in better classroom dialogue. As a result, storytelling provides a deeper understanding of the legal culture and thus should help ESL students learn both the law and culture for the first time.

Finally, it is vital to remember that the common law system consists of an endless number of stories (precedents) that require critical thinking and analysis as opposed to the civil law system, which focuses more on the search for the correct rule of law. As such, the ESL students’ mentality is usually to search for the applicable bright-line rule, which creates a conflict with the well-accepted Socratic case method used in teaching law in the United States. That conflict adds frustration to the learning process. In contrast, storytelling will help the students understand the role of the lawyer and the culture of the legal world in the United States and they will be able to slowly transition into the different thinking pattern. In addition, written storytelling will assist in fine-tuning the ESL students’ writing skills.

As described, ESL students that are studying law in the United States or another country often hope to accomplish the level of professionalism that would make their oral presentations and written work product comparable to that of attorneys who are native speakers of English or another language. Obviously, not everyone will choose to pursue this objective but assuming that one would, the question then becomes: Is this goal realistic and if so, how can it be accomplished? Considering that all ESL students that have been admitted to law-related programs in the United States have at least an acceptable, although non-native, command of professional English, the author believes this goal can be accomplished if the students and professors devote their time and energy to following two major steps. First, the students need to commit to converting their entire thinking process into the English language. Second, the students need to commit to converting their law-related thinking and writing into one that is acceptable in the legal community in the United States or another country, which includes, among other specifics, the usage of proper local legal terminology. The law professor needs to provide specific direction to the students as to how to go about following each of these steps.

To assist the students with converting their entire thinking process into the English or other language, the professor needs to restrict the students’ usage of their native language dictionaries in the classroom.

In addition to converting one’s general thinking into English, ESL law students need to focus on converting their law-related thinking and writing into proper local legal terminology. The students will have to learn and memorise a brand new professional vocabulary that they will incorporate into their lawyerly communications and work products. The professor may assist the students in compiling long lists of new terms that are critical to their general knowledge of the law as well as their particular specialty. A good way to start would be to recommend that the students read a number of court decisions per day (a minimum of two). As they read, students should make a long list of unfamiliar legal terms that need to be defined by looking them up in a recognised law dictionary. The students should also compile and organise the terms in a logical order. These lists should be useful to the students when they work on their own legal writing.

It is advisable to incorporate these strategies into every aspect of a student’s classroom experience and individual learning. Teaching storytelling presents an excellent example of how it can be accomplished in a classroom setting. Specifically, it is worthwhile to ask the students to write down the words of the songs they are asked to listen to or to summarise a certain dialogue in one of the movies they are asked to watch. In addition to all the benefits described, this type of exercise will emphasise the importance of good listening skills and close attention to detail, which are critical to successful lawyering. Students can also research the history of the movie, song or cartoon that they are asked to learn focusing on the culture and background, which will contribute to an interesting and productive classroom discussion. In addition, the students should be asked to make a list of new legal terms and any other words that they have encountered and to propose situations where such terminology would be used. The combination of focusing on the substance, history, knowledge of the new legal system, as well as one’s language ability, will make the storytelling method especially successful. As discussed, it is critical that successful lawyers think, analyse and communicate in the same professional language and using these steps will assist ESL students in achieving this goal as they study law in the United States or any other country.

It is also critical to note that the proposed strategies apply merely to the form of communication and not its substance, which remains unaffected by being expressed in a different language. It is merely translated into a different language; just not word-by-word. The author is confident that most ESL law students that are committed to this objective will be able to move beyond their starting point. The commitment to this objective will allow the students to practice law in a foreign country if they choose to do so or to just interact with local legal professionals at a new comfort level. These recent developments in legal education, among others, will assist the globalisation of the legal profession worldwide.

Today, lawyers are often contacted and retained by clients who reside in different parts of the world and are looking for advice that incorporates knowledge and expertise in more than one legal system. As such, it is critical that attorneys all over the world are trained accordingly. To fulfill the needs of the changing legal profession, legal education responds by expanding law-related programs and developing new theories on educating foreign lawyers/ESL students. A number of American scholars have focused on developing special law-related programs and theories for educating international law students. This article argues that in order to learn and comprehend legal skills that are critical to the practice of law in a global multinational environment and also to improve the form in which oral or written communication is expressed, the students need to think in the same language that they are practicing law or training to do so at the time.

To accomplish this goal, the students need to convert their general thinking into the foreign language and they also need to convert their law-related thinking, writing and analysis into those that are acceptable in a new legal community. Law professors need to provide students with guidance and support during that process. The storytelling method is especially helpful in introducing students to the new legal system and culture. As a result, the students will experience a full immersion into the new legal environment and will be able to successfully make the transition into that professional culture if they chose to do so.


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