Merritt, D --- "Pedagogy, progress, and portfolios" [2010] LegEdDig 43; (2010) 18(3) Legal Education Digest 42

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Pedagogy, progress, and portfolios

D Merritt

Ohio State Journal on Dispute Resolution, Vol 25, 2010, pp 7–24.

In 2007, the Carnegie Foundation for the Advancement of Teaching published a comprehensive study of legal education. Drawing upon learning theory, an intensive study of 16 law schools, and empirical data gathered from other schools, the interdisciplinary Carnegie team recommended that law schools expand training in both expert skills and professional identity. At the same time, the Clinical Legal Education Association published a guide to Best Practices for Legal Education. This report, spearheaded by Roy Stuckey, offers detailed information about how law schools can achieve a wide variety of pedagogic goals.

A group of 10 law schools, including some of the nation’s leading institutions, formed a network to support further innovation in legal education. Other law schools have adopted systemic reforms aimed at enhancing their skills training and experiential education. In addition, numerous conferences, committees, and task forces are exploring new approaches to legal education.

These developments offer significant opportunities for ADR faculty to expand the teaching of alternative dispute resolution. The ‘new’ pedagogies that have aroused interest draw from ADR experiences and can support further development of the ADR curriculum. Most important, these pedagogies may integrate ADR more firmly as a central experience of legal education.

Professional learning portfolios allow students to map, document, and display their achievements. A good portfolio begins with learning objectives: what information and skills does a student need to master in order to perform as a professional in a particular field? After identifying these learning objectives, students pursue experiences designed to obtain the desired mastery. By documenting these experiences in the portfolio, students both track their progress and identify new learning goals. Finally, students may use the portfolio to display their achievements to employers; a portfolio may include course grades, detailed instructor evaluations, journal entries for clinical work, summaries of extracurricular experiences, writing samples, videotapes of simulated or real practice experiences, and any other information summarising a student’s learning achievements.

Portfolios thus are more than a means of collecting information; they are part of the learning process. Cognitive scientists recognise that the best education occurs when students embrace specific learning goals, identify concrete steps for achieving those goals, and receive regular feedback on performance. By advancing at least two of these goals, portfolios contribute directly to student learning.

In law schools, professors sometimes require students to create mini-portfolios as part of an individual course. A clinic, for example, might require students to collect documents and memos written during the semester; to compose journal entries describing client contacts; and to assess their own work critically. ADR courses, similarly, sometimes require students to create videotapes of simulated exercises, to reflect on those exercises, and to identify areas of improvement or new learning. These approaches generate portfolio-like products within a single course or clinic. A few law schools have experimented with more comprehensive portfolios.

Some law firms and bar associations, finally, have adopted portfolios to support the training of new lawyers. Associates pursue these competencies through a mixture of client work, mentoring, in-house training, self-directed activities, and continuing legal education. Detailed checklists help associates target learning goals, achieve those goals, and document their success. The competencies and checklists together produce a professional learning portfolio. Portfolios are both a concept and a tangible object. The portfolio concept embodies a goal-centred, student-motivated approach to education. This approach can assume many tangible forms. Some portfolios are electronic; some appear in old-fashioned notebooks or paper folders. Some portfolios contain brief lists of achievements; others encompass hundreds of pages of work. Law schools and their students can adapt portfolios to their individual learning styles.

Most educational portfolios include three components: educational goals, steps for achieving those goals, and reflections of performance. Few educational institutions leave portfolio design completely to their students. To guide student effort, institutions usually create a template that expresses common learning goals.

A typical law school template might include general learning goals such as ‘mastering legal doctrine’ or ‘developing legal writing skills’. Each category would include sub-goals. A ‘legal doctrine’ category, for example, might list all of the doctrinal subjects that a school teaches, or all of the subject areas in which its graduates practice. Students could supplement those goals with more unusual objectives or sub-goals.

Similarly, a template goal of ‘developing legal writing skills’ would identify a range of writing tasks that are essential to professional development.

Portfolios are notable for their flexibility in identifying educational goals. Just as individual students may add goals to the template, each school may tailor its template to its institutional mission. One school, for example, might perceive ‘developing an understanding of international legal systems’ as a critical goal for all students to achieve. Another school might view that objective as secondary.

In addition to articulating goals, law schools can use portfolio templates to designate those goals as required, highly recommended, or elective. The legal institution can also recommend a set of educational experiences for all students, or for students interested in particular practice areas. A portfolio template enables law schools to offer course-planning advice in a manner that students find more user-friendly than conventional curriculum guides.

Especially if a school uses electronic portfolios, the template can also allow students to prioritise educational goals and group sub-goals in different ways.

Once students have targeted specific educational goals, portfolios require them to identify means of achieving those goals.

The law school’s template will assist students in finding these means. For goals related to acquisition of doctrinal knowledge, the template may point students to particular courses. The school template, however, can dig deeper than the typical course catalogue by referring students to components of courses.

A comprehensive portfolio template would advise students that the educational goal of ‘participating in a law-related negotiation’ could be realised in particular doctrinal courses as well as in a course titled ‘negotiation’.

The ‘means’ portion of a law school portfolio would also encourage students to consider extracurricular activities and workplace tasks as ways to fulfil educational objectives. A student who wants to build negotiation skills by participating in a law-related negotiation may be able to achieve that goal through an extracurricular negotiation competition, an assignment at work, or a volunteer activity. By focusing on educational goals, portfolios help students envision alternative ways to achieve their professional aims.

At the same time, portfolios can distinguish different levels of experience. ‘Participating in a law-related negotiation’ is not the same as ‘learning about effective negotiation techniques’ or ‘receiving feedback on my own negotiation performance’. All of these experiences help develop expertise in negotiation; all may be necessary to achieve true mastery. But during the three short law school years, students will not be able to achieve every sub-goal related to every professional objective.

After formulating goals and identifying means to achieve them, portfolios allow students to reflect upon their performance. These reflections include both internal and external components.

In the internal portfolio, students record their own reactions to an educational experience. These reflections help students identify new educational goals and means of attaining them.

To encourage candour in these reflections, the internal portion of a portfolio should be private

– accessible only to the student. The student can choose to share those reflections with faculty counselors, workplace mentors, and others when the student would find that helpful. Law schools, in fact, can achieve the most benefit from portfolios by providing faculty mentors who will review results with students.

The external portion of a portfolio is a marketing tool. In this section, a student can conveniently gather materials to show employers. This information might include a traditional transcript and resume, but it can encompass much more. Students may deposit writing samples, videotapes, and other work products in their portfolios. With an employer’s permission, the student can include sample work assignments.

Students can also write their own summaries of distinctive educational experiences. Professors and workplace supervisors can complement these portions of the external portfolio by offering evaluations of a student’s work on a particular project.

Especially when created electronically, the external portion of a portfolio can give employers remarkable information about a student’s performance.

Students can also adapt these portfolios for different employers, highlighting one type of work for some employers and different achievements for others.

Law schools have spent more than a century developing their legal curriculum; we should be able to explain its purpose to students. A good portfolio template would reveal the professional goals that first-year courses aim to achieve. Even though most of those courses are required, students could note their achievement of particular objectives.

Effective education is purposeful: when students understand the goals they are trying to achieve, they master material more readily. Law schools could greatly enhance the value of the education they already offer simply by helping students see the purposes behind that education. Portfolios offer a tangible opportunity for each school to articulate those goals: by defining the objectives that students may attempt to achieve across the curriculum, the faculty identify their own educational purpose.

Law schools today offer an extensive array of extracurricular activities. Law reviews and moot court competitions have multiplied; clubs and student organisations number in the dozens; opportunities to tutor students, provide pro bono legal aid, and engage in other activities abound. Students, moreover, pursue an increasing number of part-time jobs, summer clerkships, and professional internships.

Schools, however, rarely explore the specific ways in which these extracurricular experiences further students’ professional development. Portfolios could help both students and law schools trace these connections.

By focusing students on educational goals, rather than merely course requirements, portfolios could help students identify a wide range of experiences contributing to attainment of those goals. Practitioners repeatedly call for law schools to offer more training in the practical skills that lawyers employ. Although law schools have vastly expanded this instruction during the last two decades, reviews like the Carnegie report suggest that the academy still falls short.

But one stumbling block lies in the basic structure of academic institutions: law schools, like most other academic programs, organise learning into discrete courses taught by individual faculty members. Since neither law school budgets nor student schedules can accommodate separate courses on all of the skills needed for law practice, we continuously fall short.

Once again, portfolios provide a partial answer by shifting attention away from course packages and toward educational goals. Portfolios, meanwhile, offer a subtle incentive for faculty members to include more professional practice experiences in their courses. Law professors, like their students, enjoy recognition. If portfolios list diverse practice experiences such as counseling clients and drafting wills as educational goals, and if students seek to fill those goals, then professors may step forward to satisfy the demand. Appearing as an entry in several dozen student portfolios may seem like scant reward, but professors enjoy recognition for the learning they share in the classroom. Reminding professors of new educational benefits they could offer will tempt some to experiment in established courses.

On an institutional scale, portfolios can also push schools toward educating students in a broader range of skills. If students repeatedly name a particular goal, such as learning to interview witnesses, in their portfolios, schools will note the rising interest. If employers reinforce the demand by hiring students who have achieved a specific skill, institutions will have an added incentive to satisfy the interest.

The legal job market is tough. To survive in this market, new lawyers need to prove their immediate workplace worth. A portfolio that summarises the student’s achievements and allows the employer to view specific examples of memos, negotiations, and court documents may land a desirable job. Portfolios, moreover, can focus students on the specific skills they have mastered, allowing them to market themselves more confidently to employers.

The career-placement function of portfolios also has potential to alter the law school curriculum.

As long as employers centre hiring on law school grades and law review membership, schools lack a key incentive to offer more skills training. Skills courses are expensive, and they do not yield as much as they should in the employment market. But detailed portfolios may give employers the courage to hire students who can tangibly demonstrate their mastery of desired skills. If that happens – if employers begin hiring students who excel at writing memos, cross-examining witnesses, or any other skill – law schools will offer more opportunities for students to develop those abilities. In the current job market, no law school wants its graduates left behind.

Law schools cannot produce fully formed lawyers in three short years. Cognitive scientists, in fact, estimate that expertise in any professional field requires about 10 years to acquire. Legal expertise, moreover, is not static: law practice changes rapidly. Law school graduates, therefore, must devote several post-graduate years to honing their expertise, and then must expect to spend a lifetime updating that mastery.

Lawyers of all seniority levels must identify the skills they want to refine, recognise opportunities for developing those skills, and aggressively pursue those opportunities. This type of self-initiated learning can produce remarkable results.

Law school portfolios can introduce students to the concept of controlling their own educational ends and means.

Successful self-education rests on two building blocks: identifying specific goals and recognising concrete steps toward achieving those goals. Portfolios accustom students to defining educational goals and mapping strategies for achieving them. A student who has practiced setting and achieving educational goals during law school, rather than simply enrolling in a series of unconnected courses, is more likely to mentor herself effectively during a lifetime of law practice.

Portfolios can enhance legal education for all students, but these tools offer particular promise for professors, law schools, and practitioners interested in promoting the study of alternative dispute resolution.

First, portfolios trump the longstanding dispute about whether law schools should teach alternative dispute resolution concepts in freestanding courses or should integrate those principles across the curriculum. The best answer, of course, is both: students benefit from studying alternative dispute resolution in multiple contexts as well as in dedicated courses. Portfolios implement this approach by allowing students to pursue ADR education flexibly, in components of doctrinal courses as well as in freestanding classes.

Second, portfolios mute arguments about whether alternative dispute resolution encompasses doctrine, professional skills, or essential elements of thinking like a lawyer. Again, the answer is ‘all of the above’ – ADR spans all three of these categories.

But portfolios allow us to skip debates over ADR’s exact place in the curriculum. Most students will identify both ADR doctrine and skills as key educational goals.

Third, portfolio-thinking can lessen the costs of providing ADR education in law school. Once students and faculty concentrate on educational goals, rather than on courses, they may fashion innovative ways to educate students about ADR.

With portfolio-based learning, professors can advertise all of the educational goals that their courses aim to fulfil. Some students will affirmatively choose a course that complements doctrinal learning with a negotiation exercise; others will at least understand the course’s dual goals. Recording those diverse goals in their portfolios will help all students understand that they have learned something about both a doctrinal subject and a critical lawyering skill.

By offering professors low-risk opportunities to respond to student demands for ADR, portfolios help spread ADR learning throughout the curriculum. This reduces the costs of ADR education by engaging more faculty members in the work. Equally important, the process lowers the perceived opportunity cost of ADR classes by demonstrating to faculty the value of ADR education. As more faculty experiment with ADR exercises, they understand the important work lawyers perform in that field.

Finally, portfolios can expand ADR education by leveraging the contributions of employers and other practitioners. As students identify ADR learning objectives, they will fulfil some of those goals outside the classroom. Experiences gained at work, through volunteer activities, and in externships will help students explore negotiation, mediation, and other processes. Reflecting on those experiences through portfolios reinforces the learning and ties it to the students’ more formal curriculum.

Portfolios draw upon pedagogies that ADR professors themselves pioneered. They also address many of the concerns raised by education reformers, offering an opportunity to improve several facets of legal education. For both ADR professors and other education reformers, professional learning portfolios offer a promising addition to the law school curriculum.