Maranville, D A et al --- "Re-vision quest: a law school guide to designing experiential courses involving real lawyering" [2010] LegEdDig 33; (2010) 18(3) Legal Education Digest 5

• Re-vision quest: a law school guide to designing experiential courses involving real lawyering

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Re-vision quest: a law school guide to designing experiential courses involving real lawyering

D A Maranville, M A Lynch, S L Kay, P Goldfarb and R Engler

Albany Law School Research Paper No. 10–17, 2010, pp 1–65

Legal educators have long viewed experiential courses involving real lawyering as a world divided neatly in two: externship placements and in-house clinics. Increasingly, the content of these categories has expanded, the always-permeable boundary between them has blurred, and hybrids and varieties that defy easy categorisation have sprouted. Thus, the labels conceal both similarities and differences.

Our overarching purpose is to identify and frame the wide array of options for structuring an educational experience in which law students are performing as professionals engaged in service to people involved in legal matters.

We suggest that legal educators expand their thinking about curricular options for experiential learning and develop a conceptual framework for articulating these options.

From the perspective of the burgeoning social justice movements of the 1960s and 1970s, law was a vehicle for progressive social change. In that era, the field of public interest law, which had already sprouted in various forms, was growing and blossoming. As courts expanded individual legal rights and the right to counsel, law students were seen as one source of representation for those who could not afford legal assistance.

Inspired by these developments, a new generation of law students sought to become lawyers for underserved people. Law schools began hiring clinical faculty and creating clinical programs to help these law students achieve their goals. Within a decade, clinical programs and the clinical faculty who taught in them had established a strong foothold in the curriculum at many law schools.

As this thumbnail history reveals, the first programmatic models for clinical education were grounded in the imagery of litigation and courtroom representation on behalf of subordinated populations. Over time clinical faculty refined their pedagogies and deepened the academic connections between their work and the work of the university. This movement of clinical education

– from the margins of the academy to a more prominent place within it – allowed clinical faculty to focus more deliberately on the pedagogical aspects of their work.

As their academic mission developed, clinical educators began developing theories of their practice, which involved both the practice of law and the practice of teaching, and began thinking more broadly and more deeply about the legal profession and the needs of its future practitioners. Clinical educators began to develop programs and pedagogies that encompassed the spectrum of lawyering skills and roles, including counseling, mediation, transactional, and legislative work.

This literature suggests a pedagogy in which students assume the role of the lawyer, and while in role, face problems of the sort that lawyers encounter in practice. The students’ performance in role becomes the subject of study, and consequently, students are asked to make their thinking, planning, and choosing systematic and explicit, in oral and written form, at every step along the way. Students are asked to consider the significant events occurring in their casework, to process them internally, to seek to understand their meaning, and to evaluate them in light of their own performance.

As experiential education has evolved, so too have the structural options for programs involving experiential learning. The structural forms of the experiential programs that a law school offers may have been intentionally designed, organically developed, or pedagogically rooted.

In the following section we present a narrative description of the structural options for experiential programs. We hope that this framework can assist legal educators who are involved in a deliberative process of curricular design to consciously explore the full array of structural options for experiential pedagogy. Achieving that objective means that educators – immersed in the contexts, constraints, and circumstances facing a particular law school at a particular time

– will be enabled to make more informed judgements about how to configure effective and targeted contextual learning opportunities for their students.

The starting point for identifying potential structures for experiential education is, of course, to identify the desired goals for those experiences. As suggested in our prior discussion of the evolution of, and tensions within, experiential education, the goals of experiential education have included engaging students, understanding unequal social structures, advancing social justice, developing lawyering skills, cultivating professional identity, fostering professional ethics, providing culturally competent client representation to a diverse array of clients, developing sound judgement and problem-solving abilities, gaining insight into law and the legal system, promoting lifelong learning, and learning to work collaboratively.

The composite parts of experiential instruction fall into two main categories: the supervised experiential component and the group learning component.

The supervised experiential component is shaped by the source of the work, the role played by the student, and the nature of the work. Choices include which tasks or responsibilities the students will perform in conducting the legal work and what role the students will play. These choices define the content of what can be learned and explored in the context of the course.

In undertaking experiential education, the student takes on particular tasks or responsibilities. These may include judging, mediating, counseling, representing individuals or groups in adversarial proceedings, representing individuals or groups in non-adversarial contexts, representing individuals or groups in various kinds of transactions, or educating groups about law and the legal process. In representing individuals or groups, the student may be either a primary or a subsidiary attorney. The student may also serve in the role of a mediator, a judicial clerk, a teacher, a trainer, or an observer.

As the pages of the Clinical Law Review attest, experiential teachers use the group learning component in numerous ways. Some teachers may use classroom time for skill building, some may engage in simulations, some may develop interdisciplinary perspectives; others may expose students to critical perspectives or may endeavour to develop their students’ cultural competence. Some teachers focus on the foundational substantive and/or procedural law needed for the experiential component, while others conduct case rounds.

The group instructional component can be a pre- or co-requisite to the experiential component. It may be brief or extensive, it may bridge the gap between doctrine and practice by discussing applications of doctrine in relevant contexts, it may be a tutorial on specific issues implicated in the cases or problems of the experiential component, and it may or may not be limited to those who are engaged in the experiential component. Alternatively, one may choose not to have a group learning component.

Program designers must make choices about not only who will have the responsibility to teach, but also who will have the opportunity to learn. Which students will participate in the experiential component and which students will participate in the classroom component? As with the decision about faculty, the student participants in the classroom component may or may not be co-extensive with the student participants in the experiential component. Those involved in the experiential component may be the entire class, or perhaps a subset of the class – a team of students working on a particular case or project, or even an individual student. They may all be law students or they may be an interdisciplinary group that includes law students and students from other disciplines. They may be chosen by lottery, by application, or some other method.

Supervised experiential learning can occur in many locations. The most common locations are on-site legal clinics, judicial and executive chambers, prosecutor and defender offices, governmental agencies, legislatures, non-profit legal services, and other legal advocacy offices. Some law schools offer experiential opportunities in private law firms, while others offer them in cities and countries far distant from the law school. The group instructional component can be offered at the law school, at an off campus location, or even in cyberspace, through computerised distance learning technologies.

Law school students and faculty are accustomed to the structure of courses taught during the same time periods each week for a specified term of weeks. Learning in these non-experiential courses is typically structured around these pre-determined time periods. Students and teachers engaged in experiential learning, on the other hand, often structure time around the experience rather than structuring the experience around a pre-set time block. Experiential learning, difficult to structure into predictable days and times, is not likely to occur in fifty minute time blocks. In addition, student experiences may be allowed to extend beyond the temporal beginning or end of the academic term. Indeed, since contextual learning so often comes from reflection on experience, these reflections can continue and deepen long after the term has concluded.

The timing of experiential education may vary on additional dimensions, including when it occurs during the course of the student’s education, timing within the academic calendar, the length and intensity of either the experience or the group learning component, and the timing of any group learning component in relationship to the experiential component.

The source of experiential content may influence the overall educational content. For cases handled within the law school, options include self-referral of clients, appointment by the court, and referrals from agencies. For external placements, possibilities are placement lists, student initiative, or requests for student workers from site supervisors. The option chosen creates its own administrative and resource consequences surrounding intake, staffing, litigation fees and costs, and other expenditures.

Institutions award various forms of acknowledgement to recognise experiential learning. Most law schools award academic credit to students for participation in experiential programs, and a handful of law schools make such programs mandatory.

We now turn to an important practical question: what are the contextual factors and constraints that will influence a school’s structural choices for its students’ real lawyering opportunities? Our list, familiar to readers involved in experiential programs, includes the specific goals, institutional mission, resources (monetary and non-monetary), professionalism concerns, and interests of the various players (such as students, faculty, law school and university administration, the surrounding legal community, and the potential client base.)

The articulated goals for an overall program of experiential learning will be a crucial factor in determining the details of each experience. Often a school will articulate multiple goals – such as professional ethics instruction, lawyering skills development, and the provision of public service

– and the relative priority of the goals will affect the program’s design. For example, the trade off between skills development and public service is evident in choices about the case volume handled by the students, the intensity of supervision, and the content of classroom work linked to the experience.

While we hope that a law school’s mission and curricular goals will play a primary role in programmatic design, the lesson of experience is that monetary concerns will loom large. Experiential programs can be funded through the sources generally available for legal education: tuition, state funds, private gifts, or sources available only for special purposes, such as grants, or attorney’s fees. The cost of an experiential learning program will vary with design and circumstances, but significant lawyering projects are resource-intensive.

Experiential learning involves not just the faculty resources devoted to a real lawyering curriculum, but also financial concerns relating to administrative and support staff, office space, office equipment and supplies, computers and their maintenance, and malpractice insurance premiums. Additional costs may be incurred in the effort to secure outside grants and comply with reporting requirements.

Since no law school has unlimited resources, a decision to fund one project is often a decision to close the door on another.

Non-monetary resources, such as the size and location of the law school and the availability of expertise, are also critical factors in choosing among possible structures for real lawyering projects. Considerations of size include the number of faculty and students, the existing menu of real lawyering experiences already available to students, and the scale and uses of the physical plant. A law school located in a large urban centre will face a very different range of opportunities and community needs than a law school located in a largely rural area. The location of the law school will affect the diversity, backgrounds, and interests of the student body, the needs of the community, and even student and faculty travel time. Finally, location and size are intimately intertwined with the types and levels of expertise that will be available for the support and staffing of a project. If the structure of the program requires a permanent faculty member to directly supervise the students, an important concern will be whether there are any current faculty members at the law school, inside or outside the experiential program, who have the expertise to do so.

Enthusiasm and support from key players may be considered another non-monetary consideration that is crucial to the success of a new experiential learning project. A single enthusiastic student or student group can energise the project, a motivated faculty member can develop it, and dedicated members of the bar or local community groups can play a critical role in sustaining it.

Pedagogical concerns also affect the nature of the experiential projects that a law school chooses. A law school may want to provide a variety of lawyering opportunities and ensure so that all students have courses tailored to their various learning styles, or the law school may choose to create structured sequences of lawyering experiences for students to undertake on the view that appropriate sequencing will enhance students’ learning.

Although a detailed exploration of the professional and ethical concerns implicated by real lawyering experiences is beyond the scope of this article, those concerns provide important contexts and constraints for designing experiential learning opportunities. Students may need to comply with the requirements of the jurisdiction’s student practice rule. Where programs involve collaboration with those outside the law school community, clarifying whether the lawyer-client relationship includes the law school actors will have implications for the ethical analysis of the issues that are faced and will affect the coverage of the school’s malpractice insurance.

Competence, confidentiality and conflicts of interest issues also implicate structural concerns of a different nature. Students must learn the parameters of confidentiality and understand the definition of the law firm in which confidences must be kept. The ethical issues are compounded where the lawyering involves collaboration with lay advocates, such as social workers, or where it entails the provision of legal assistance that is not intended to supply full representation.

Clarity will also require institutional decisions about whether to treat all of those involved in experiential projects as belonging to one firm, or whether those involved in each project will constitute separate firms.

Beyond the formal rules, the law school will want its students, faculty, and community partners to provide competent service and some tension may exist between the standards of practice in the community and the aspirational standards for the experience. Students should have appropriate foundational knowledge and professional skills to perform the necessary lawyering work with a realistic level of effort. They also need guidance to avoid conflicts of interest between the legal work that they conduct under the law school’s auspices and the legal work that they undertake through part-time or summer employment. Faculty and supervising attorneys may experience a conflict between the duty to provide competent representation to the client and their obligation and desire to provide a meaningful educational experience to the student.

We turn now to three illustrations of how a law school might use our framework of structural options to aid its decision making about how to initiate, reconfigure, or expand its experiential education curriculum.

The first stage is an inventory, involving an assessment of an institution’s structure, goals, resources, and characteristics. Some seemingly immutable characteristics might be overcome by creative plans and strategies, even though these strategies may take considerable time to coalesce.

Since goals for any program will be a paramount consideration, consider the options that respond to the ‘why’ question. Viewed in light of both the goals that you have framed and the list of contextual factors and constraints that you can name, what options make the most sense or seem to ‘fit’ best in the litany of what, who, where, when and how? Try to be as comprehensive as possible about the numerous configurations realistically available to you. What are the pros and cons of the various options you have developed? As you consult various constituencies about these options, the decision making process may highlight which structures are emerging as the best choices for your institutional environment.

Third, return to the considerations listed under contexts and constraints, giving thought to considerations beyond the ones you initially identified as the critical ones. Add to the assessment any contexts and constraints that may emerge from circumstances outside your institution, such as political and organisational currents influencing legal education. How will the institutional choices that you are considering interact with these currents? Do these interactions create additional constraints? Assess the relevance of these considerations to your situation now or in the future. Where you have identified critical considerations as barriers to attractive programmatic options, make certain before abandoning these possibilities that they are truly obstacles that cannot or should not be overcome.

Having consciously undertaken a careful and comprehensive decision making process, you are ready to act. While that step may be self-evident, without deadlines akin to those that exist in litigation, there is a danger that the process will remain open-ended. There is always the potential that better options might be developed or the sense that the future might be a better time to act. If, however, the impetus is a desire to improve the school’s experiential learning curriculum, the status quo may be less desirable than an ‘imperfect’ choice. The clinical literature is replete with examples of innovative programs, launched with enthusiasm, which encountered anticipated and unanticipated problems. The rich analysis that flows from reflection is often the most salient part of the story. Therefore, reflecting on the actions taken, with a willingness to remake those actions in light of these reflections, is a critical final step in the process.