Waye, V; Faulkner, M --- "E-portfolios and legal professional attributes" [2012] LegEdDig 13; (2012) 20(1) Legal Education Digest 45

• E-portfolios and legal professional attributes

---

E-portfolios and legal professional attributes

V Waye and M Faulkner

S Kift et al, Excellence and Innovation in Legal Education, LexisNexis, 2011, Chapter 9, pp 239-266.

A number of factors have recently coalesced to render e-portfolios a useful tool in legal education. Within the higher education sector there has been an increasing emphasis upon advancing beyond curriculum mapping toward substantiation of learning. Through the Australian Higher Education Quality Standards Framework, substantiation of learning has in turn become linked with quality assurance. In conjunction with that development, the Australian Learning and Teaching Council has facilitated the drafting of internationally comparable discipline specific standards that demonstrate the baseline outcomes that graduates should achieve within branches of learning such as law.

Some professional discipline bodies have also moved to outcome based accreditation requirements. While Australian legal admission authorities have yet to emulate the Australian Nursing and Midwifery Council’s registration requirements or the Stage 1 Competency Standards developed by Engineers Australia, the move toward a national admission system may provide the opportunity for doing so, consistent with developments in the United States and elsewhere.

E-portfolios support substantiation of learning because of their capacity to link evidence of learning to a self-narrative of progress toward specified outcomes that can then be verified (if necessary) by authorised third parties. In this manner, e-portfolios help make outcomes central to the law curriculum. E-portfolios also facilitate transformative, student centred learning. Their educational benefit lies, not so much in the collection and tagging of digital artefacts, but in learning how to (1) select material that substantiates development; (2) evaluate and reflect upon learning; (3) set future learning goals; (4) undertake personal action planning; and (5) articulate claims about the achievement of professional standards.

Web based social networking aligns with the notion of the student as the self-author and self-manager of their own learning that is a central tenet of e-portfolio pedagogy.

An e-portfolio is a digitised collection of materials that acts as a tool for capturing personalised learning and thus for building student engagement; depository of records of development and achievement; tool for reflecting upon and planning in relation to development and achievement; tool for exchange of ideas and evaluations about personal development; and means for students to disseminate claims about their learning and development to others, including potential employers.

Digitisation facilitates a wide variety of creative connections between artefacts and claims of achievement. Artefacts typically come from inside and outside the formal learning environment and comprise discipline knowledge, aptitudes and values; feedback from peers, professional mentors, supervisors and teaching staff; personal reflections; personal planning; statements about professional philosophy and future aims; and claims that seek to articulate the attainment of learning outcomes, employability indicators and/or professional competencies. In the context of legal education artefacts may include: audio-visual records of engagement in negotiation and dispute resolution; audio-visual records of advocacy; audio records of client interviews; examples of legal drafting; critical incident reports involving clinical legal education experiences; examples of legal problem solving and analysis; examples of legal writing; examples of legal research capabilities; awards recognising achievements; and references from clerkship experiences.

Unlike traditional learning management systems that capture course content and assessment, e-portfolios are both lifelong and life wide. By facilitating the interweaving of evidence of accomplishment with reflection and personal planning, e-portfolios enable law students to track their progress against professional abilities that they may develop during the course of their study. As law students transition to practice, e-portfolios also have the capacity to connect experiences of professional legal practice with the building of professional identity.

As part of an entire e-learning strategy, the authors consider that it is better to implement e-portfolios on a University wide basis. The University can ensure that the adopted e-portfolio tool dovetails with its learning management systems; that a systematic approach is taken to issues of interoperability and technical implementation (for example, universal sign on); that adequate training is provided to staff and students; that access to professional mentors is assured; that students can use their e-portfolios across the whole of their enrolled studies, law and non-law; and that clear policies are developed in relation to appropriate use (for example, defamation or breach of copyright). A University wide implementation can also more easily address issues of sustainability, that is, whether the University is prepared to maintain the e-portfolio post-graduation. Nonetheless, it will still be up to each Law School and law degree co-ordinator to determine how the e-portfolio tool might be used in teaching and learning. Different approaches may be taken depending upon whether the law degree is undergraduate or post-graduate; whether the degree incorporates practical legal training and/or work integrated learning; and whether the degree is heavily focused upon the development of legal professional competencies or whether the degree is largely focused upon the understanding and application of legal doctrine. In the authors’ view, e-portfolios are more strongly favoured the greater the degree of authentic and experiential learning that is incorporated into the law degree. Without the incorporation of authentic and experiential learning, getting students to reflect upon their personal development and to engage in personal action planning will be problematic.

Authentic learning requires correspondence between the world of learning and the world of professional practice. It is the antithesis of the regurgitation of legal principle and mechanical approaches to hypothesized problem scenarios seen in conventional Law School examinations. Rather, authentic learning requires learners to be situated within a setting that simulates, insofar as is possible, what they might encounter as a legal professional. Being so situated, authentic learning therefore incorporates elements of experiential learning.

The Australian Learning and Teaching Council’s Law Threshold Learning Outcome 5 provides a good vehicle for discussion of the above philosophy. Threshold Learning Outcome 5 states that:

Graduates of the Bachelor of Laws will be able to a. communicate in ways that are effective, appropriate and persuasive for legal and non-legal audiences, and b. collaborate effectively.

Evidence of the attainment of this outcome should be provided through constructively aligned student assessment that allows students to experience and demonstrate that they can carry out the relevant activities that are indicative of the outcome. Clearly, Threshold Learning Outcome 5 cannot be substantiated by traditional law examinations or essays. Communication incorporates the ability to relate to people from diverse backgrounds, to listen effectively, to take appropriate instructions, and then to provide other legal professionals, clients and stakeholders with an appropriately fashioned response. Similarly, effective collaboration cannot be demonstrated simply by a discussion of what collaboration might entail. It must be demonstrated by the ability to organise activities and projects, lead agendas, negotiate conflicts, and ensure that individual contribution from team members is maximised.

In many Australian Law Schools these kinds of threshold learning outcomes or graduate attributes have been vertically mapped across the whole law program and specifically aligned with learning activities and assessments customised according to levels of development at certain points in the curriculum.

Using multimedia and the web it is easy to make connections between the learning outcomes above and students’ various social, work or learning experiences. However, it almost goes without saying, that the transition from traditional assessment practice focused upon the application of discipline knowledge to various atomistic exercises to this form of self-regulated, transformative learning will not be an easy one. Connecting law students with the process of their learning requires considerable structured support. Substantial investment needs to be made in explaining the purpose of e-portfolios. Students need to know what an e-portfolio is and how it may be able to benefit them. Otherwise, the extra work involved in creating and maintaining an e-portfolio may be regarded as an overly onerous and superfluous obligation. Likewise, relating e-portfolio pedagogy to the law curriculum, and implementing an experiential, constructivist approach to learning also requires a high level of faculty commitment and support.

Reflective practice is the process of engaging in critical reflection upon the experience of applying knowledge. It requires the examination of beliefs, goals and practices from multiple perspectives with a view to gaining deeper understanding that leads to improvement in and maturation of professional knowledge, skills and values.

There are a number of ways that law teachers can support the development of reflective practice. This includes allocating time within the law degree to strengthen the link between experience and a subsequent reflection activity. Implementation of reflection is challenging with resistance likely as the value to learners is often not initially comprehended.

One of the challenges in supporting the reflective process is that individuals hold different ontological and epistemological perspectives and this influences their chosen inquiry paradigm. Many students, particularly law students, regard reflection and planning as a waste of time that diverts them from the acquisition of discipline knowledge. Explaining the process of enquiry associated with the law and provision of examples may assist learners to comprehend the role of reflection in professional practice. Educators and mentors need to be aware of differences in evaluative development stages for learners, teachers and practitioners.

The tacit nature of reflection by experienced practitioners also makes it difficult for learners to comprehend the value or process of reflection. Making reflection explicit and modelling reflective practice was suggested as an important task for law teachers to indicate the personal and collaborative nature of reflection. The focus in academia has traditionally been on the cognitive development of learners, but reflection also requires acknowledgment and support of emotional development. Embedding opportunities to share reflections in a supportive environment can increase awareness of multiple perspectives and encourage self-awareness and further skill development.

The assessment and evaluation of reflection is a contentious area with concerns relating to the appropriateness of methods incorporated into curriculums. Criticism of the assessment of reflection cover issues of consistency, equity, pedagogy and ethics. Other concerns have been raised on the concentration of personal reflections whilst ignoring the social aspects of reflective practice in professions. This is supported by the finding that a supportive mentoring relationship is more important than the creation of a portfolio in promoting reflective learning. The nature of the reflective discourse within professions is an important aspect of the support provided with the tendency in nursing to focus reflective practice on negative aspects not seen as helpful.

The literature contains a number of case studies on supporting reflective practice. A recent review of health professional education concluded that reflection can be assessed with different levels of reflection discerned. An example is the use of four levels of reflective writing derived for teacher education − descriptive writing, descriptive reflection, dialogic reflection and critical reflection that are applicable generally. Transparency of assessment is improved by the creation of rubrics based on different levels of reflection relevant to the context and stage of development.

Rubrics provide a useful resource for self and peer assessment to compliment academic assessment of evaluation and reflective practices.

Personal development planning (PDP) is a corollary of reflection upon learning. It is a dynamic process that assists the identification, refinement and achievement of personal, learning and career goals and is thus aligned with both autonomous and lifelong learning. As the diagram below illustrates, by incorporating PDP into the curriculum students learn to identify goals which are specific, measurable and achievable within specific time frames; learn how to identify the necessary resources that they will require to achieve their plans; and learn how to review and evaluate the implementation of their plans.

In addition to reflection upon legal knowledge and the development of transferrable skills such as communication and collaboration, PDP in Law also tends to be oriented toward helping to build the specific attributes and values of the legal profession.

In the United Kingdom, where opportunities for PDP have been mandated since 2005 – 6, initially PDP was implemented through the standalone use of e-portfolios and personal tutor support rather than embedded within the law curriculum. This proved to be less than satisfactory. Some writers have therefore suggested a course in ‘professional development’. Other writers have recommended that personal development should be embedded within the curriculum, and then made explicit in separate PDP sessions at certain transition points in the program, so that students can make a clear connection between what they are learning and their future aspirations. The latter approach aligns with the development and embrace of the ALTC project on Threshold Learning Outcomes, in particular Learning Outcome 6 which provides:

Graduates of the Bachelor of Laws will be able to

a. learn and work independently, and

b. reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development.

Educators play an important role in supporting graduates to evidence both professional and academic standards. Whilst professions are a major stakeholder in education outcomes, universities aim to provide general dispositions rather than reflecting the current employment needs. This means that graduates require the ability to articulate general dispositions into the specific needs of future employers.

As with reflective practice, methods used to articulate and validate evidence of professional competence also vary according to discipline needs. Traditionally, nursing and education have favoured the use of portfolios for this purpose whereas other disciplines, such as accounting and law present evidence of the hours spent on professional development activities. Disciplines such as law face greater challenges in moving towards richer articulation of professional competency with support required for learners, law teachers and professional mentors.

E-portfolio assessment across a whole program and range of competencies can be very labour intensive and time consuming raising concerns about its scalability across large numbers of students. Others argue that the highly individualised nature of e-portfolios make them difficult to assess. The validity and reliability of e-portfolio assessment has correspondingly been questioned, and students have perceived a lack of consistency among e-portfolio assessors.

As a result of these problems it has been suggested that insofar as whole of program e-portfolios are concerned, personal reflections upon performance and critical incidents ought to be used for formative assessment purposes only and that summative assessment should be reserved for claims about accomplishment of professional standards. This approach would have the benefit of reducing confusion and conflict between personal reflective space and institutional credentialing, and would also have the benefit of making the e-portfolio leaner and more accessible, thus reducing any perceived burden for the creator as well as its assessors.

On the other hand, because assessment is used to signal what is valuable, if only the product or claims of learning are assessed and the process of learning is not, the potential for development of reflective practice may be reduced. In any event, where the capacity to engage in reflection and self-management is itself a learning outcome as is the case for Learning Threshold Outcome 6 in Law, appropriate means have to be developed to demonstrate its attainment. Arguably the same concerns raised about e-portfolio assessment will be raised in relation to any assessment of personal reflection upon authentic experience which involves complex ethical dilemmas and interface with clients and members of the profession.

One of the major benefits of e-portfolios is the platform they provide for immediacy of dialogue between law students and their teachers, peers and professional mentors. Studies have found that ongoing engagement from properly informed academic or professional mentors enhances reflective learning and is more likely to lead to sustained lifelong use of the e-portfolio. Using a web platform, dialogue can occur in numerous ways including by blog, discussion board, audio file, and track changes on submitted word documents.

One of the ongoing challenges faced in implementing this approach is the long-term nature of development. It requires ongoing interaction with graduate attributes, TLOs and e-portfolio concepts, and constitutes a different way of thinking about learning for staff, students and institutional systems. We found that combining a law degree perspective with embedding activities within specific subject offerings provides a way of using existing systems to transition into new ways of thinking about learner development. Our work in the law degree has coincided with university wide changes that will provide greater flexibility in assessment choices supported by the online learning environment, particularly through the inclusion of student e-portfolios.

The use of learner owned e-portfolios can supplement traditional learner management systems and provides benefits that support both academic and professional success. Embedding e-portfolios early in law degrees ensures graduates have the opportunity to capture their development and have a wide choice of experiences and evidence to draw into portfolio views.

There is a danger that without law teachers’ engagement the e-portfolio is viewed as simply a repository for evidence of learning and it will not deliver the benefits outlined in this chapter. It is critical that the process of capturing evidence and reflecting on learning is embedded with time allocated in the curriculum. Careful consideration is required to ensure reflection and exchanging of ideas is relevant to professional practice with appropriate forms of assessment and support. Feedback is an essential component of this approach with ongoing dialogue required to support the e-portfolio processes that occurs within individual courses. The authors recommend formative assessment of personal reflections of professional competence and critical incidents with summative assessment limited to claims of achievement of professional standards.