Nees, A T et al --- "Enhancing the educational value of experiential learning: the business court project" [2010] LegEdDig 41; (2010) 18(3) Legal Education Digest 36

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Enhancing the educational value of experiential learning: the business court project

A T Nees, S Willeynn and N R Mansfield

Journal of Legal Studies Education, Vol 27, No. 2, 2010, pp 171–208

A critical element of an introductory course in business law includes an understanding of the court process and dispute resolution. At Georgia State University (GSU), we have required undergraduate business students to make a ‘court visit’ to witness this process in action and to broaden students’ basic understanding of the role of law and its application in resolving actual disputes. Recently, we have adapted the ‘court visit’ project to use the resources available at the Business Court of Fulton County Superior Court in Atlanta, Georgia (the FCBC or Business Court). The FCBC, which adjudicates corporate governance and commercial and business claims, offers a unique forum for discussing business law topics.

The Legal and Ethical Environment of Business course is a sophomore-level course required of all J. Mack Robinson College of Business majors and minors (including the legal studies minor within the risk management major) as well as several majors and minors outside of the business college. The purpose of this survey course is to introduce the student to the significant role the legal environment plays in facilitating and constraining business activity. Because litigation is a major risk, the course devotes considerable time to the structure and jurisdiction of the federal and state court systems, the litigation process, and alternative methods of dispute resolution.

In addition, the Legal and Ethical Environment of Business course provides students with an overview of US constitutional, statutory, administrative, and judicial efforts to regulate business activity in several areas (e.g., business entities, corporations, agency, employment law and employment discrimination, contracts, torts, product liability, and the protection of intellectual property). Because strategic responses to competitive pressures also require managers to make difficult ethical decisions, students are introduced to ethical theory, various ethical decision- making models, and the application of ethics to business decision-making.

Research on learning suggests that the most effective learning is active, integrative, and experiential, which both develops and transforms the student. Pedagogies that facilitate experiential learning should be applied (with well-articulated educational outcomes related to the curriculum), participative, interactive, and involve a ‘real world’ contact. Finally, the experience should be carefully structured, allow for student evaluation and reflection, and provide critical feedback.

While conceptual learning is important, the major leaps forward for students often occur when they encounter theories experientially. This experiential learning occurs though many activities – active learning group projects, classroom simulations, experimentation, off-campus experiences, and systematic assessment and reflection.

Experiential learning asserts that learners ‘construct’ knowledge from a process of experience, reflection, thinking, and action.

Kolb’s model, which is perhaps best known, breaks down experiential learning into four stages: (1) Concrete experience, which involves learning by doing; (2) Reflective observation, which involves thinking about the learning experience; (3) Abstract conceptualization, which involves drawing a conclusion or concept based on the experience and observation; and (4) Active experimentation, involving the application of the new experience and information.

Concrete, hands-on experiences provide students with the opportunity for personal observation and reflection that correspond with the first two stages of learning: doing and watching. According to experiential learning theory, the learner then assimilates these reflections into abstract concepts and conclusions, followed by some form of action, establishing the third and fourth steps of learning: conceptualisation and doing.

By actively observing and interpreting a business court proceeding, students are able to integrate their court observation with the course content, enhancing their understanding of legal terminology, substantive legal doctrine, and the effect that legal procedures, evidentiary rules, and sophisticated legal arguments have on the outcome of a case. They also have the opportunity to witness how the litigants structured the contract or transaction underlying their dispute in an attempt to reduce or manage their anticipated risk. Moreover, as a result of their Business Court observations, students are better able to evaluate the advantages and disadvantages of handling complex business disputes through litigation.

By asking students to observe a complex legal proceeding and then reflect upon their observations in a structured paper, the project communicates high performance expectations to students, setting a benchmark for the course. In addition, students are encouraged to attend Business Court with their classmates so they can discuss their observations and respond to each others’ reactions to the proceeding, thereby deepening their understanding of the legal issues and improving their ability to critically evaluate the experience.

Another goal of the project is to promote deeper learning by facilitating critical thinking. To complete the Business Court Project, students must reflect on their courtroom experience and how it connects to their coursework. They must then write a paper that accurately describes what they observed in court, critiques the experience in light of what they have learned in class, as well as their prior perceptions of the legal process.

Although the possibility of litigation is a business reality, many business students have a limited understanding of the civil litigation process, and that understanding is frequently based on inaccurate portrayals of the judicial system in movies and television dramas. To provide these students with a more ‘reality based’ view of the legal system and to help ‘demystify’ the legal process for them, students in the Legal and Ethical Environment of Business course have long been required to observe at least one to two hours of state or federal trial court proceedings.

By observing a court proceeding, students develop a greater appreciation of the role of law and the courts in balancing legitimate, competing interests of the parties. They become more aware of the complexity and unpredictability of the law as well as the importance of procedure in determining the outcome of cases. In addition, most students report that the experience of actually attending a court proceeding not only reinforces what they learn in the classroom, it also provides them with a much more realistic view of the litigation process than what they have seen depicted in the media.

Observing an hour or two of a complex business case, instead of whatever case happens to be in the courtroom on the day they choose to attend, provides students with a more dramatic illustration of the tensions inherent in business litigation and that both parties often have legitimate, but competing, interests, even though ultimately only one party will win. Not only are students more aware of the complexity of the legal issues involved in the proceeding when they observe a case in the FCBC, they also begin to appreciate the impact such complex litigation can have on the business operations of the parties.

As a result of the knowledge and critical thinking undertaken in the course and reflected in the Business Court Observation Paper, students are also better able to recognise, assess, and analyze problems and legal issues affecting business; apply legal principles to resolve business problems; identify legal problems before they occur; participate more effectively in resolving disputes that do arise; and appreciate the ways in which law both facilitates and restricts business activities.

The guidelines for writing the paper are intended to promote a more structured reflection of the students’ court observation experiences. In the first essay, they are asked to describe in detail what they actually observed in the courtroom (eg, the purpose of the hearing, who was present, the issue before the court, and how the court ruled, if known). In the second essay, they are asked to discuss how what they witnessed in the Business Court proceeding compares with their understanding of the substantive and procedural issues based on lecture, class discussions, and assigned readings. Finally, in the third essay, students are asked to comment on their impressions of both their particular experience during the court visit and the assignment generally, noting whether the experience changed or reinforced their perceptions of court proceedings.

After students submitted their Business Court papers, we asked them to assess their experience. More than 125 students have completed the Business Court project in the past two years; 106 of these students completed the assessment.

To help determine if the Business Court Project accomplished some of the learning goals stated in the syllabus, the students were asked a series of questions about those objectives. Seventy-five per cent of the students indicated that they better understood the importance of pretrial procedural motions in deciding business cases, while 72 per cent were more appreciative of the complexity of business cases after their courtroom observations. Seventy-four per cent stated that they were now more aware of the substantial sums of money involved in business litigation. Finally, 68 per cent concluded that their Business Court experience had helped ‘demystify’ the legal system for them, such that they anticipated being less intimidated if it becomes necessary for them to bring or defend a business lawsuit in the future.

The Business Court Project enhances the educational value of experiential learning and encourages critical thinking. Preliminary assessment shows that students are better able to draw linkages between theory and practice.