#HERDSA2015 – 9 July 2015

I’ve Storified tweets from the final day of the annual conference for the Higher Education Research and Development Society of Australasia, Melbourne, 9 July 2015:
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#ALTA2015 Call for Conference Papers

alta2015A reminder that 1 May 2015 is the deadline for submission of abstracts for the Australasian Law Teachers Association annual conference.

You can find a conference flyer and abstract submission form here. The conference theme is “Access to Justice and Legal Education”.

La Trobe University Law School will host the conference at the City Campus, Melbourne from Thursday 16 July to Saturday 18 July 2015.

 

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Access to Justice Arrangements Final Report – Quick Look re PLT

access-justice-volume1The Productivity Commission’s final inquiry report regarding Access to Justice Arrangements (5 September 2014) was released on 4 December 2014. You can download the report here.

I have previously discussed the draft report and some submissions to the inquiry here.

I have quickly scanned the report for what it states about practical legal training. Firstly, Recommendation 7.1 (underlining added):

RECOMMENDATION 7.1 The Law, Crime and Community Safety Council, in consultation with universities and the professions, should conduct a systemic review of the current status of the three stages 
of legal education (university, practical legal training and continuing professional development). The review should commence in 2015 and consider the: 


  • appropriate role of, and overall balance between, each of the three stages of legal education and training 

  • ongoing need for each of the core areas of knowledge in law degrees, as currently specified in the 11 Academic Requirements for Admission, and their relevance to legal practice 

  • best way to incorporate the full range of legal dispute resolution options, including non-adversarial and non-court options, and the ability 
appropriate resolution option to the dispute type and characteristics into one (or more) of the stages of legal education 

  • relative merits of increased clinical legal education at the university or practical 
training stages of education
  • regulatory oversight 
for each stage, including the nature of tasks that could 
appropriately be conducted by individuals who have completed each stage of education, and any potential to consolidate roles in regulating admission, practising certificates and continuing professional development. Consideration should be given to the Western Australian and Victorian models in this regard. 


The Law, Crime and Community Safety Council should consider the recommendations of the review in time to enable implementation of outcomes by the commencement of the 2017 academic year.

The first dot point is very interesting – Noel Jackling cites the Trew Report (1966), the Freadman Report (1969), the McDowell Report (1971), the Ormrod Report (1971) and the Victorian Joint Working Party Report (1985) as all adopting a ‘compartmentalised’ model, ‘in which the stages [of legal education] follow each other’.  A review of the three-stage model would have implications for those who have treated the three compartments as watertight in the past. I believe such a review is overdue.

Increased clinical legal education during the academic or PLT stage could have challenging consequences. I support clinical legal education for teaching and learning in law; however there are substantial administrative and financial factors associated with it. As the report observes at p. 249:

Although it has benefits, clinical legal education is very intensive in terms of staff resources, and is therefore relatively expensive when compared with more traditional university-based methods for teaching law.

I would not like to see an  approach to new requirements that might inhibit diversity, equity, and parity of access to legal education.

Regulatory oversight is also an interesting issue in PLT – I have received  feedback from PLT practitioners about  regulators’ resistance to change and innovation in teaching and learning theory and practices in PLT.

The recommendation contemplates the review of the three-stage model commencing next year and concluding before the 2017 academic year – so hold on to your hats – this will be an exciting ride!

Volume 1, p. 242 of the report includes a brief summary of ‘practical legal training and admission’.  Curiously, the report omits mention of one of the longest-serving PLT providers, the Leo Cussen Institute, when stating PLT courses ‘are offered online and throughout the country by universities, the College of Law and other select training bodies’.

Volume 1, p. 248 – the report states ‘Clinical legal education can provide more practical training’ but observes it should not just be an ‘add-on’ to the academic degree, later adding at p. 249 (underlining added):

Given the increasingly generalist role of the undergraduate law degree, a focus on elements that are specific to practising in the legal profession (as distinct from corporate or government work) could be misplaced. However, in postgraduate study (such as JDs or PLT), the use of clinical legal education to concurrently develop knowledge and skills may prove a valuable means to expedite courses while still maintaining quality.

It is not clear on first reading whether the Commission considered the work experience component of PLT. If the intention is to supplement the work experience component with clinical legal education, this may or may not solve the current problem of the shortage of work experience placements, provided the admission boards accept clinical legal education undertaken during PLT as part of the pre-admission work experience requirements. The Commission refers to the Newcastle University’s integrated program of academic, clinical legal education, and PLT, seemingly taking this as a model for what might be done. My understanding, however, is that graduates from integrated programs face difficulty in having the PLT qualification accepted for admission in some jurisdictions.

Vol 1, p. 252 – in discussing a ‘balancing’ of the three stages of legal education and training, the Commission states (underlining added):

Simply adding new elements to legal education (ADR, clinical legal education) risks driving up the cost and duration of education. Instead, the role of each of these stages in training professional lawyers should be examined. Such elements need to be incorporated or ‘embedded’ into the broader learning process. Given the tendency towards more ‘generalist’ undergraduate law degrees a tiered approach to education might be appropriate, with strengthened postgraduate or practical legal training for those who intend to practice.

This seems to contemplate a more integrated approach, but with qualifications structured for practitioners and non-practitioners. An integrated approach could have modules mandated for the practitioner stream, and to which non-practitioners could later return if they chose to qualify for practice. There might be some (not insurmountable) challenges for instructional design if an integrated approach is adopted. Consider, for example, a pervasive approach to teaching subjects such as professional responsibility and legal ethics across the curriculum – instructional designers would need to track whether learning concepts are adequately covered in both practitioner and non-practitioner streams.

So that’s a quick look – I hope to complete a more detailed examination of the report early next year, with a comparison between the final report and the submissions considered regarding PLT.


 

Noel Jackling, ‘Academic and Practical Legal Education: Where Next’ (1986) 4 Journal of Professional Legal Education 1.

Productivity Commission, ‘Access to Justice Arrangements – Productivity Commission Inquiry Report’ (Productivity Commission, 2014).

The Committee on Legal Education, ‘Report Of The Committee On Legal Education (“The Ormrod Report”)’ (The Committee on Legal Education, 1971).

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Storified Tweets from #alta2014 Annual Conference

Missed the 2014 Australasian Law Teachers Association annual conference? Or trying to remember that key point? These storified tweets might take you there…

 

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Retreat! Writing and Reflection by the Surf Coast

Warrnambool This week I am spending four days in retreat at Deakin University’s Warrnambool City Centre with 20 other PhD candidates and academics, led by Professor Trevor Gale. The group, known as “The Warrnambool Collective”, meets at least annually to focus on writing and research around “practice”. Most, not all, who attend are affiliated with Arts and Education. Each day begins at 9.00 a.m. with a “shut up and write” session that runs until we break for lunch at 1.00 p.m. After lunch there are streamed and plenary sessions, presentations, and discussions until 5.00 p.m. I am very fortunate to be included in this event (prompted by my thesis supervisor, Dr Julianne Lynch), and this year is my second visit to the retreat.

As a full-time PhD candidate, I’ve spent much of the last two years researching and writing alone. Indeed, over the last 15 years I’ve engaged in study of some sort, and I’ve become accustomed to the solitary nature of the work, with brief intense interactions at conferences or seminars. One of the things striking for me about the retreat is how the solidarity of quiet collective writing, the awareness of minds and bodies around you engaged in constructing and reflecting on texts, comforts, succours and encourages me. I am reminded that I am not alone, that I’m part of a larger quest. By itself, this activity is a powerful product of the retreat.

The afternoon sessions include presentations by PhD candidates about their work (at different stages of candidature), provide multi-perspectival insights about how individuals grapple with, and resolve, theoretical and methodological issues. The senior academics are supportive and constructively critical, with a focus on problem-solving and knowledge-sharing. Chaired discussions on topics as simple as “how do you keep up with the literature?”, “how do we conceptualise “practice””, lift the lid on privately-held innovative practices and ideas that are sometimes startling in their simplicity, but substantially effective. The chance mention of a theorist, an article, a concept can catalyse fresh insights, fresh directions.

It is, as Trevor remarked on Day 1, an enormous privilege to have time, funding and personnel allocated to the retreat. And it pays off, with a review of the previous year’s event noting manifold conference papers, journal articles or book chapters commenced, advanced or completed during the retreat. As far as I am aware few, if any, retreats like this exists for those engaged in practical legal training or professional legal education in Australia.* I think this is a great pity. We need reflective and creative spaces within the field, not just “professional development” activities.

Sincere thanks to Deakin University and all involved for making this event possible.


* If you’re involved with such an event, invite me!

 

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Michel Pistone and Beryl Blaustone on Motivation

This is a lovely six minute video produced by Professors Michel Pistone (Villanova University School of Law) and Beryl Blaustone (CUNY Law School) regarding extrinsic and intrinsic factors in motivation and learning. In essence, extrinsic factors (e.g. rewards) are said to be useful for motivating rote learning, whereas intrinsic factors (autonomy, mastery, purpose) motivate creative thinking and problem solving skills, but do watch the video for yourself…

Motivating 21st Century Law Students from Michele Pistone on Vimeo.

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Quick Look – Submissions re PLT to Productivity Commission’s Access to Justice Inquiry

Access to Justice Arrangements Productivity Commission Draft RepIn my previous post I referred to the Australian Productivity Commission’s overview of its Draft Report regarding Access to Justice, released 8 April 2014.

The Commission received 190 submissions, of which 36 are post-draft report submissions.

As far as I can tell, about 8 submissions are from either a law school, or an academic connected to a law school. There does not appear to be any submissions from a PLT provider, which is surprising given the terms of of the report and the recommendations referred to in my previous post.

I have quickly examined the 190 submissions in relation to the topic of practical legal training (PLT). Just 11 submissions mention PLT at all, and of these about one third might be substantive submissions. I provide the following summary of these submissions, with the caveat that this is the product of a quick perusal and errors and omissions should not be imputed to those cited.

Submission 169 – Law Admissions Consultative Committee (LACC):

p. 2 at 2.6 – criticises the draft report for failing to ‘either to acknowledge, or in formulating its Recommendation 7.1 to take account of, the further significant roles of the Academic Requirements as referents for determining the adequacy of the training of overseas lawyers and the additional training they require before becoming eligible for admission in Australia; as constituting the common threshold for sequential PLT training in Australian PLT courses’.

p. 3 at 2.12 –  observes, ‘the Draft Report incorrectly asserts that, in the current education and training of lawyers “there is no requirement for the study of alternative dispute resolution (ADR)”‘, pointing out that early dispute resolution is included in the National Competency Standards for Entry-Level Lawyers.

p. 6 at 3.4(a) – notes the ‘aspiration’ of the academic and PLT requirements for admission, ‘is to develop threshold competence, appropriate to someone beginning a life in the law, rather than sophisticated or advanced knowledge or expertise’.

p. 6 at 3.4(b) – states  ‘the 11 Academic Requirements and PLT Competency Standards for Entry-Level Lawyers are national referents for determining what additional training must be undertaken by overseas applicants who wish to prepare for admission to the legal profession in Australia’.

p. 7 at 3.4(c) – states ‘The national PLT Competency Standards for Entry-Level Lawyers assume that all those proceeding to undertake sequential PLT courses have attained threshold and common understanding in each of the areas of knowledge comprised in the 11 Academic Requirements. Given the limited duration of such PLT courses, it is impractical for them either to offer remedial training to some students who are not adequately prepared in some of these common areas of knowledge, or to extend their courses to cater to those who are not appropriately prepared. Further, to do so would increase the costs of the practical legal training stage of legal education unnecessarily.’

p. 8 at 4.1 – ‘In evaluating the ALRC’s [Australian Law Reform Commission] suggestions about the need for training in broad generic professional skills development, it is important to note that the ALRC Report predated the introduction of the comprehensive and explicit national PLT Competency Standards for Entry-level Lawyers which were not endorsed by all Admitting Authorities until 2002. Since that time, all PLT courses have been required to ensure that every person presenting for admission has received practical legal training in, and acquired and demonstrated entry-level competence in, many matters relevant to modern legal practice – including ADR.’

pp. 11-12 at 5 – ‘…when a person is seeking admission, it may be relevant to enquire whether the person has the relevant academic and PLT qualifications and whether the person has been disciplined by an academic institution for, say, plagiarism or cheating.’
‘It is, however, true that many law graduates proceed to undertake PLT and seek admission to the legal profession, but do not thereafter seek to practise law…’
‘The suggestion that there is a need to consider what legal tasks can appropriately be performed by legal graduates without practising certificates fails to recognise the large numbers of lawyers who are already employed in legal capacities on legal tasks in business or government and who do not require practising certificates. This has happened for many years. Indeed, Admitting Authorities have recently had to grapple with the problem of stale qualifications because of law graduates seeking admission to the legal profession many years after they have obtained legal academic and PLT qualifications, who are now employed as lawyers in senior government positions.’

p. 12 at 7 – ‘The Commission is apparently unaware of the requirement of item 5.3 of the national PLT Competency Standards for Entry-level Lawyers, which every applicant for admission since 2003 is required to acquire and to demonstrate before becoming eligible for admission to the legal profession.’ Item 5.3 of the PLT competency standards effective January 2015 refers to the Civil Litigation Practice competency.

Submission 10 – Christopher Enright (proprietor of Maitland Press):

p. 93 – ‘Chapter 14: Internship for Trainee Lawyers. Make working in legal aid for a period, say of two or three months, part of the practical legal training (PLT) for novice lawyers. Deploy the novices in preparing documented cases for clients. There are two benefits from this – the novices would be on a relatively low wage, which keeps costs down, and at the same time these novices receive intensive and supervised training and experience in the basic tasks for litigation.’
p. 95 – ‘Newly graduated lawyers. One possibility is to incorporate into their practical legal training a period of say three months where they are an intern in a legal aid office.’
p. 100 ‘Indeed, it would be possible to include a placement in a legal aid office as an optional or even compulsory part of practical legal training. This could involve instruction and supervised practice in the following matters:
1. Office management. 2. File management.
3. Interviewing a client.
4. Advising a client.
5. Interviewing a witness.
6. Writing a statement of evidence of a witness. 7. Preparing documents for a client’s case.
8. Ethics, with special emphasis on litigation.’

Submission 92 – Dr Liz Curran (ANU):

p. 2 – refers to own teaching experience in ANU Legal Workshop’s GDLP.
p. 12 – ‘Clinical and some Practical Legal Training Programs at universities do great work engaging students in supervised service delivery to community members experiencing disadvantage.’
p. 15 – ‘Is the current regulatory framework for legal practitioners appropriate? The National Legal Profession Reform process is taking a long time. There are sometimes, among the various admitting authorities and others examining admission to practice, in some states and territories, arbitrary decisions taken with little or no evidence or a level of sophistication about developments in practical legal education and effective learning for practice in the current world. There is much national and international work in the practical legal training and legal education spheres that could inform such conversations.’

Submission 181 – UNSW Law School:

p. 1 – ‘Lawyers need first-class black-letter skills, but that is not enough. Equally, we should not be a trade school providing practical legal training.’
p. 2 – “The steps of legal training  – Your report describes the steps as being university education, PLT, and obtaining a practising certificate. The last of these is not training, but recognition that the first 2 steps have been completed. In its place, it would be more appropriate to include the on-the-job training that young lawyers get when they join law firms or other employers.’
Attachment to Submission 181 – Themes of law school curricula: ‘A third is skills and capabilities (not in terms of detailed practical legal training, but rather in communication, critical-thinking and problem-solving).’

Submission 114 – Adrian Evans (Monash University):

p. 1 – ‘There is little general morality or even general legal ethics education during law school and certainly none post law school in the PLT phase of legal education.’

Submission 171 – Adrian Evans (post-draft submission):

p. 1 – proposes consideration of ‘the relative merits of increased clinical legal education [CLE] at the university or practical training stages of education’. CLE methods can work in a PLT environment, but these are time-pressured and increasingly online environments where the ability to interact face-to-face with a number of (real) clients over many weeks, is considered to be impractical and/or uneconomic.’

Submissions that mention PLT in passing:

Submissions 34 (NSW Bar Association), 91 (National Association of Community Legal Centres), 96 (Law Council of Australia), 139 (Law Society of South Australia), 174 (Law Society of NSW) each mention PLT in passing, usually with reference to admission requirements.

Public Hearings

The Productivity Commission will hold public hearings commencing in Canberra on 2 June, and in other capital cities.

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Productivity Commission 2014, Access to Justice Arrangements, Draft Report Overview

Access to Justice Arrangements Productivity Commission Draft RepThe Productivity Commission has released its, ‘Access to Justice Arrangements, Draft Report Overview’.

The terms of reference include:

  1. the factors that contribute to the cost of legal representation in Australia, including analysis of:
    1. the supply of law graduates and barriers to entering the legal services market…

The overview records DRAFT RECOMMENDATION 7.1:

The Commonwealth Government, in consultation with state and territory governments, jurisdictional legal authorities, universities and the profession, should conduct a holistic review of the current status of the three stages of legal education (university, practical legal training and obtaining a practising certificate). The review should consider:
•    the appropriate role of, and overall balance between, each of the three stages of legal education and training
•    the ongoing need for the ‘Priestley 11’ core subjects in law degrees
•    the best way to incorporate the full range of legal dispute resolution options, including non-adversarial and non-court (such as tribunal) options, and the ability to match the most appropriate resolution option to the dispute type and characteristics, into one (or more) of the stages of legal education
•    the relative merits of increased clinical legal education at the university or practical training stages of education
•    the nature of tasks that could appropriately be conducted by individuals who have been admitted to practise but do not hold practising certificates.”

A “holistic review” of the “three stages” of legal education might produce interesting further recommendations, particularly in respect of “increased clinical legal education” at the university or practical training stages”.

I wonder, assuming the intent is to improve access to legal education as part of the broader access to justice project, whether increased clinical legal education requirements might actually reduce numbers able to apply for admission to the profession (or is that the idea?). I anticipate additional legal clinics would need to be established and the resources for these must come from somewhere.

I support the quest for expanded clinical legal education and work experience opportunities, but substantial resources must be allocated to these. In the current economic and political environment, one wonders if the will is there. And if the will is not there, what are the consequences for diversity, equity, parity, and social justice in legal education?

 

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