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Sandefur, R; Selbin, J --- "The clinic effect" [2010] LegEdDig 17; (2010) 18(2) Legal Education Digest 5


The clinic effect

R Sandefur and J Selbin

16(1) Clinical Law Rev, 2009, pp57-107

Law schools teach students to think like lawyers but not to act like them. That is, while law schools prepare students to reason analytically (the cognitive dimension), they neither prepare students adequately for the practice of law (the skills dimension), nor instil in them sufficiently a sense of professional responsibility and public obligation (the civic dimension).

Clinical legal education – as an applied, apprenticeship-like setting now commonplace within most law schools – has been posited as a partial solution to shortcomings in both the skills and civic dimensions.

In a modest attempt to begin to fill this gap – and to identify areas for further inquiry – this article explores new findings from After the JD, a national, longitudinal survey of early-career lawyers. We know from prior published reports of After the JD data that early career lawyers value clinical experience more highly than any other aspect of the formal law school curriculum in preparing them to make the transition to the profession. This significant finding suggests that clinics may play an important bridge function between law school and law practice.

The shortcomings of legal education as training for the practice and profession of law have been evident almost since the inception of the modern law school. Critics vary in their analyses of the problem – and a robust debate has taken place within and among them about the proper mix of theory, doctrine and practice in legal education – but most agree on the following observations.

First, ‘law schools rely too heavily on one signature pedagogy to accomplish the socialisation process’. The Socratic case method has important strengths, teaching students analytic reasoning – or ‘thinking like a lawyer’ – especially in the appellate court context. A perhaps unintended consequence of this signature pedagogy, however, is legal education’s failure to teach students how to act like a lawyer in a whole range of practice settings.

Second, acting like a lawyer is itself comprised of at least two distinct, if intersecting, elements, including the performance of basic tasks (the skills dimension) and the conduct of professional behaviour (the civic dimension).

Scholars in this tradition focus on two potential products of law school experiences that correspond broadly to what we have termed the skills and civic dimensions of legal education: students’ development of professional expertise and students’ development of a commitment to public service.

Surveys of lawyers themselves find substantial gaps between the skills they think they need for practice and those they believe they were taught in law school.

In the civic dimension, studies of law school socialisation often tell a story of decline and diversion. During law school, students’ commitment to work for the public good is either crushed or its meaning is changed to encompass more mainstream aspirations.

Within the legal academy, critics have long lamented the limits of the instructional model. As early as the turn of the 20th century, leading voices within law schools called for more practical and professional training of students.

In 2007, the Clinical Legal Education Association – the leading non-AALS professional organisation of clinical taw faculty – issued Best Practices for Legal Education (Best Practices). Best Practices identified six ‘attributes of effective, responsible lawyers’. ‘Among the attributes were intellectual and analytical skills, professional skills and professionalism’. Noting a continued sense – as articulated in 1983 by Gary Bellow – that no graduate of an American law school is able to practice when graduated ... [which] is simply indefensible’.

Critiques of legal education also have come from outside the bar and legal academy. The Carnegie Foundation for the Advancement of Teaching – the leading independent policy and research centre dedicated to the cause of higher education and professional training – conducted multiple studies of legal education during the 20th century.

The most recent report – and perhaps the most influential document in current debates about the future of legal education – is Carnegie’s 2007 Educating Lawyers: Preparation for the Profession of Law (Carnegie Report). The Carnegie Report identifies a teaching goal common across professional training in medical schools, nursing schools, engineering, the seminary and law schools: ‘[P]rofessional education aims to initiate novice practitioners to think, to perform, and to conduct themselves (that is, to act morally and ethically) like professionals’. The report characterises these complementary teaching goals – which correspond to the cognitive, skills and civic dimensions – as three ‘apprenticeships, each based in different facets of professional expertise as the particular school teaches these and guided by a variety of distinct pedagogical intentions’.

The modern clinical movement was the product of several forces, which responded directly or implicitly to long-standing critiques of legal education.

In 1969, the ABA promulgated a Model Student Practice Rule – eventually adopted in one form or another in virtually every state that didn’t already have such a provision – allowing law students to appear on behalf of clients in court and to perform other legal tasks under the supervision of a licensed instructor their own values as well as those of the profession as a whole.

In 1996, the ABA amended its law school accreditation standards to require every ABA-approved institution to ‘offer live-client or other real-life practice experience’, entrenching clinics into the heart of the instructional enterprise.

Today, there may be as many as 1,200 distinct clinics in 170 of the nation’s roughly 200 law schools, a substantial expansion from the several dozen programs just a half century ago.

As clinics have expanded in number and scope in recent decades, clinicians themselves have produced a rich literature describing them as vibrant sites of both skills instruction and the development of professional identity and responsibility.

In Australia, researchers following students in a longitudinal survey from the final year of legal education through their first two years post-graduation found that students who had received clinical training were perhaps more willing to do future pro bono work than were those with no clinical experience. These recent studies offer a glimpse into how law students’ thinking may be shaped by their clinical experience, but they have yet to probe the causal relationship (if any) between students’ clinical experiences and their acquisition of skills and development of professionalism.

The After the JD (AJD) project is an empirical study of the career outcomes of a cohort of almost 5000 new lawyers, offering both a nationally representative picture of lawyer career trajectories and an in-depth portrait of the careers of women and racial and ethnic minority lawyers.

The After the JD study reports on the experiences and attitudes of people who became eligible to practice law for the first time in 2000. Lawyers who participated in the After the JD came from the full range of law schools and worked in a wide variety of legal and non-legal jobs.

Fifty-eight per cent of these respondents answered a long form of the After the JD questionnaire that included inquiries about their experiences during law school and current civic activities. Our analyses use data from this long form of the survey.

The After the JD survey asked new lawyers: ‘How helpful were the following elements of your law school years in making the transition to your early work assignments as a lawyer?’

Among the queried elements were ‘clinical courses/training’. Lawyers were also asked about their summer and school-year legal employment, internships and pro bono service work during law school. Respondents to the survey were asked to rate each element of legal education on a scale from 1 (‘not helpful at all’) to 7 (‘extremely helpful’). Eighty-four per cent of new lawyers rated the helpfulness of clinical training, implying that more than four-fifths of American attorneys who entered practice in 2000 participated in a clinic during law school. Seventy-one per cent of lawyers reported on school-year legal employment experiences, and two-thirds (67 per cent) of them found these experiences helpful. More than four fifths (84 per cent) of lawyers reported on clinical legal education, with 62 per cent rating it as helpful in making the transition to early work assignments as an attorney.

The differences between clinical courses and the lower-rated elements of law school training are statistically significant: new lawyers were significantly more likely to say that clinical training was ‘extremely helpful’ for making the transition to practice than they were to make the same assessment of legal writing training, upper-year lecture courses, course concentrations, pro bono service, the first year curriculum and legal ethics training.

To explore evidence of clinical training’s contribution to the civic dimension of lawyer professionalism, we sought empirical indicators of whether law school graduates were ‘able and willing to join an enterprise of public service’.

Of lawyers who reported that clinical training had been helpful, 70 per cent reported that a ‘desire to help individuals as a lawyer’ or to ‘change or improve society’ had been important reasons for entering law. Thus, at least in their own recollection, new lawyers who experienced and appreciated clinical training were more likely to recall that they had entered law for what one might term ‘civic’ reasons than were lawyers who did not receive the training or who did not find it helpful.

Examining the relationship between clinical training experiences and pro bono service within groups of lawyers who reported similar motivations for entering law, there are no statistically significant differences. Given these data, we find no relationship between clinical training in law school and pro bono service by new attorneys in private practice and offices of internal counsel.

The After the JD survey asked lawyers to report if they were current or past members or ‘active participants/officers’ in each type of organisation.

These rates of participation were similar among lawyers who reported different kinds of clinical experiences.

Attorneys who reported that they had entered law to help individuals or change or improve society were more likely to be active in charitable, political advocacy and bar-related organisations.

Controlling for recollected motivations, we do not see significant relationships between clinical experiences and different kinds of community participation, with a single exception. The exception is active participation in charitable organisations. The difference in participation between lawyers in the group who reported no clinical training and those who reported helpful clinical training is statistically significant. However, given the available data concerning civic participation as a whole, we find little evidence for a relationship between clinical training experiences and civic participation among new lawyers.

Early-career attorneys who found their clinical experience helpful were 82 per cent more likely to be working in public service in their early careers than those who did not find it helpful. They were 122 per cent more likely to be working in public service than those who did not report on clinical experiences.

As was the case with pro bono service and civic participation, lawyers’ public service employment was significantly associated with their recollected motivations for entering law. New lawyers who recalled civic motivations for entering law were twice as likely to be working in public service jobs as those who did not (20 per cent versus 10 per cent).

Only among new lawyers who report that they entered law to improve society or help individuals do we see evidence consistent with a ‘clinic effect’. This finding suggests the possibility of an accelerant effect, though it is not clear what is accelerating what.

The skills dimension. New lawyers rated clinical training as one of the most helpful elements of the law school curriculum for making the transition to early work assignments as attorneys. This finding does not tell us that clinic made them more competent or skilled at their work, necessarily, but it does suggest that clinic was beneficial to them in their work.

The civic dimension. Our findings on the relationship between clinical training during law school and new lawyers’ civic dimension behaviours are mixed. Likewise, we found no consistent relationship between clinical training experiences and new lawyers’ active participation in community, charitable, bar-related and political advocacy groups. However, we did find a strong relationship between clinical training experiences and public service employment. But this relationship held only for new lawyers who reported they had entered the profession for what might be termed ‘civic’ reasons: a wish to help individuals as a lawyer or to change or improve society. These findings are intriguing, but there is much that we still do not know about the clinic effect.

First, our field-wide state of knowledge about existing models of clinical training is thin. Although efforts are underway to begin gathering such information, no one has developed a typology of clinics, including – to suggest a few major categories – their teaching methods, domain content or distribution across different kinds of law schools.

Second, much of the available data about lawyers’ work and experiences comes from studies that collect information at a single moment in time. A prospective study of the impact of legal education on lawyers’ careers could follow students from the start of law school into their careers as attorneys. This kind of study would permit researchers to compare the lawyering skills, pro bono service, community participation, job choices and other experiences of students who were otherwise similar before they did or did not participate in clinics.

Third, existing research is inattentive to the contexts within which clinical training is provided and within which young lawyers work. Clinical training must be assessed and understood in the context of the other experiences that a law school offers its students.

Outside of the law school environment, studies of lawyer professionalism consistently find four factors to be very powerful in shaping lawyers’ behaviours: where they work, with and for whom they work, and the market conditions within which they operate

Clinical training’s impact, therefore, is mediated by the nature of the clinic experience itself, the context of the overall law school experience and forces external to legal education that powerfully shape lawyers’ attitudes and behaviour.

In response to gaps in existing data, we propose a research agenda that might proceed at two levels. First, clinicians could pursue lines of inquiry that involve documenting what they are already doing.

There will be limits, however, to what can be learned about clinical practice and its impact from isolated clinicians studying their own programs.

Clinicians and social scientists could design research protocols that collect comparable information about training programs, student experiences and graduated students’ skills and civic dimension outcomes.

One approach is psychometric: develop tests that assess competence. Project researchers have identified 26 ‘effectiveness factors’ that make for skilled law practice, and have produced a ‘set of scales that could be used by an observer to evaluate the effectiveness of an attorney’. Scales like these could be used to design tests to evaluate new lawyers’ competence in the skills dimension (and perhaps in aspects of the civic dimension). Another possible approach to skills assessment is an audit study. Here, participating schools would audit their students’ or graduates’ actual or simulated practice. Though very different, both psychometric and audit methods of assessment produce information about competence and skill that is independent from what lawyers and law students think they know and what law teachers believe they have taught.

Finally, such research could track law students from school well into their legal practices. A collaborative research effort like this would produce the kinds of information that might allow comparison of civic and skills dimension outcomes for students who did and did not experience clinical training, who were exposed to different kinds of clinical programs at different law schools, and who entered law with different motivations.

Our proposed agenda is meant to be representative and not exhaustive of the possibilities for further research. At the same time, the dearth of information means that even modest projects can build knowledge, generate new theories and test hypotheses. By reporting here what we know and do not know about the teaching impact of clinical legal education, we hope to encourage more in-depth and sustained inquiry into the clinic effect.


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