Review: ‘Promoting Justice Through Clinical Legal Education’ by Jeff Giddings

Promoting_Justice_CLEAn excellent book for those interested in the Australian legal education continuum, rigorously studied, and comprehensively described.

Jeff Giddings’ book, recently published by Justice Press, is divided in three parts, beginning with ‘The Potential of Clinical Legal Education’, followed by ‘Four Case Studies of Australian Clinical Legal Education’, and ‘The Future of Clinical Legal Education’. Whatever you do, do not overlook the foreword by Chief Justice Robert S French, AC, commenting on the ‘untidy business of law’ applied by ‘human beings acting in private and public capacities and informed by a variety of perspectives and levels of competence.’

Of particular interest to me and relevant to my own research was Chapter Five, ‘Factors Influencing the Establishment and Sustainability of Clinical Programs’, including external factors including, ‘economic and social context’, ‘higher education policy and practice’, ‘legal education framework’, ‘legal services policy’, and ‘attitude of legal professional bodies’. The historical material is also invaluable for researchers in this area; Giddings had terrific access to documents and people both in Australian and overseas and helpfully distils his findings without oversimplification or lost detail.

The book supports the argument for a more integrated approach to the legal education continuum that allows for concurrency of academic education, clinical legal skills and practical legal training. Giddings highlights some of the internal and external structural obstacles to the concurrent approach, including the attitudes of regulators and parts of the profession, that are of interest to me in my research. For example, some jurisdictions require PLT be completed entirely as post-graduate training as part of the eligibility requirements for admission to the profession, which poses difficulties for graduates of concurrent programs seeking admission in those jurisdictions.

Practical legal training is not often mentioned in the book, save to contrast ‘real life’ clinical experiences with ‘simulated’ practical legal training experiences. Putting arguments about the effectiveness of simulation to one side for the moment, it is worthwhile observing that practical legal training usually involves a mandatory work experience component, to provide law graduates with opportunities to integrate their PLT with real life experiences – this is often overlooked in literature critical of PLT. The challenge, mentioned in passing by Giddings, is effective practical involvement of the profession and work experience supervisors as part of a holistic approach to legal education and professional training. My understanding from anecdotal evidence, and confirmed after reading Giddings’ book, is that integrated approaches to legal education depend on the profession ‘stepping up’ to support such programs in practical ways.

My still-developing personal view is that clinical legal education at law school supports learning foundational intellectual competencies, and can also provide excellent scaffolding for practical legal training. In this context, much could be gained from partnerships between clinical legal educators and practical legal training practitioners. Those contemplating such a partnership would be well-served by reading Giddings’ book.

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Year 1 – Australian First Year Lawyers in Profile

photo-1I’ve been reading the 2011 Law Society National Profile Report* (‘Profile Report’) to learn a little more about lawyers in their first year post-admission after PLT. The Profile Report includes demographic information about solicitors, including lawyers at the 1-year post-admission stage, drawn from data supplied by Australian state and territory law societies as at October 2011.

6000 First Year Lawyers

Nationally, approximately 6000 solicitors were admitted to practice during the 12 months to October 2011 (Profile Report, p. 9).[1] I assume most of  ‘first year lawyers’ would complete PLT shortly before admission, allowing for exceptions such as those who delayed admission after completing academic and practical entry requirements, or overseas practitioners exempted from PLT.

Most (not all) First Year Lawyers  25-29 Years Old

In relation to the age of solicitors, those aged under 24 years comprised 1.8% of the national total,[2] and those aged 25-29 years comprised 16.8% (Profile Report, p. 6).
A proportion of the 25-29 year group would be first year lawyers. Bearing in mind first year lawyers would include mature-age graduates, and assuming all of those aged under 24 years are first year lawyers, approximately half of the 25-29 years group might be first year lawyers. This would be consistent with first year lawyers comprising a little over 10% of all solicitors nationally.

More Female First Year Lawyers

Of all 59,280 solicitors, 54.6% were male and 45.4% were female (Profile Report, p. i). Of first year lawyers, females comprised 61.1% and males 38.9% (Profile Report, p. 10). Females outnumbered males in the <24 years group (female: 692; male: 353) and in the 25-29 years group (female: 6218; male: 3441) (Profile Report, p. 7).[3][4]

Most First Year Lawyers in Private Practices

First year lawyers comprised 11.7% of solicitors in private practice, 8.5% in government roles and 4.2% in corporate roles. In private practice, regarding the size of the law firm measured by number of partners, first year lawyers comprised 17.3% of solicitors in firms with 40 partners or more, 14.4% in firms comprised of 21-39 partners and 11-20 partners, 12.9% in firms with 5-10 partners, 11.7% in firms with 2-4 partners, and 8.5% of sole practitioner firms (Profile Report, p. 11).

Most Young Lawyers Are In A City

Most ‘young lawyers’ (solicitors admitted for 5 years or less) worked in the city (62.7%) or the suburbs (23.2%), with the remainder at overseas or unknown locations.

The profile report provides some useful demographic information about Australian solicitors, which would be enhanced by additional qualitative research. I found it useful to learn more about where first year lawyers are located in the legal sector and geographically. I was a little surprised that nearly 6000 were admitted to the profession during the relevant period, but less surprised by the gender distribution because this was consistent with my observations in teaching PLT during 2007-2011. With seemingly very few first year lawyers moving into country or regional work, there might be a role for PLT teachers to provide insights to law graduates about the potential benefits of working outside of the city and suburban areas. Also, given the higher proportion of women joining the profession, it will be interesting to see whether there will be a reversal of the historical reduction of women in the profession as the cohort grows older.

* Urbis for The Law Society of New South Wales, ‘2011 Law Society National Profile – Final Report’ (The Law Society of New South Wales, 2012).

[1] It is difficult to be precise because the Profile Report did not include admission figures for ACT and Tasmania, because those jurisdictions did not report admission statistics (Profile Report, p. 9).
[2] Excludes ACT and Tasmania: Note to Table 3 (Profile Report, p. 6).
[3] Excludes ACT and Tasmania: Note to Table 4 (Profile Report, p. 7).
[4] In older age groups the proportion of females to males decreases rapidly, beginning with the 40-44 year age group and upward (Profile Report, p. 8).

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Scaffolding from Threshold Learning Outcomes to National Competency Standards

IDocCovers am revisiting the data from a qualitative study I reported at APLEC 2012 in Hobart. The APLEC conference presentation looked at potential ‘gaps’ in the learning continuum from law school to practical legal training, by examining the threshold learning outcomes for the Australian bachelor of laws degree and the national competency standards for entry-level lawyers. With the benefit of some further study in grounded theory and coding strategies, I am digging further into the two documents, from the point of view of a PLT teacher. For example, as a PLT teacher specifying the conditions under which a learning task must be performed, what can be assumed about law graduates’ foundational intellectual competencies material to the task? I hope to produce an article about this work in the next month.

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Is the Lecturer in the Room?

LER_Article2012 The Legal Education Review has published an article I co-authored with Dr Julianne Lynch last year.* The article reports on a practitioner-initiated study of student satisfaction with online discussions in practical legal training. I undertook the study under Dr Lynch’s supervision as part of my master degree in professional education and training in 2011. An abstract is available here. Undertaking the study (and obtaining ethics approval) was a significant learning experience for me. Research that focuses on teaching and learning is quite a different experience from the doctrinal research that lawyers often do. The challenge of recruiting participants for this study highlighted for me some of the difficulties in undertaking this type of practitioner research. Writing the journal article was also an important learning experience, and I am much indebted to Dr Lynch’s supervision together with the editorial committee at the Legal Education Review, and the two anonymous reviewers. I have resolved to work harder at improving my academic writing! I hope the article would be a useful springboard for anyone contemplating similar research involving online discussions in legal education or practical legal training

*Kristoffer Greaves and Julianne Lynch, ‘Is The Lecturer In The Room? A Study Of Student Satisfaction With Online Discussion Within Practical Legal Training’ (2012) 22(1&2) Legal Education Review 147.

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Presentation in November – APLEC 2012 – Hobart

‘Skills’ in LLB Threshold Learning Outcomes and Competency Standards for Entry-Level Lawyers – a Comparison using CAQDAS

I am presenting a brief paper at the Australasian Professional Legal Education Council conference hosted by the University of Tasmania Law School from  8 November 2012.  The abstract follows:

This study analysed the Threshold Learning Outcomes (“TLOs) specified in the Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, and the Competency Standards for Entry-Level Lawyers for Practical Legal Training, as updated by the Australasian Professional Legal Education Council and Law Admissions Consultative Committee in February 2002 (“Competency Standards”). Qualitative analysis was undertaken using the NVivo computer assisted qualitative data analysis software (“CAQDAS”), to investigate how skills were categorised and defined in each of the documents. The data were then analysed to compare the respective categorisation and definition of skills, and to identify potential complements, overlaps, conflicts, gaps, or blind spots, between the TLOs and the Competency Standards. The findings, and the methodology adopted, might provide insights for future instructional design, content, and delivery of Practical Legal Training programs, and for future reviews of the TLOs and Competency Standards.

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Taking into account ‘affect’ in Practical Legal Training

This post is an edited version of a comment that I posted to the Practical Legal Training Educators Australia discussion group.

I recently finished re-reading Julian Webb’s chapter, ‘The Body in (E)motion: Thinking through Embodiment in Legal Education’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education – Emotion in Learning and Teaching the Law, Emerging Legal Learning (Ashgate, 2011) 211.

I think Julian Webb makes a compelling argument (at p 227) that, ‘By enabling our students to get social in the classroom, to come together in a more structured and reflective way, group learning can actively support their social and moral development, and – maybe, just maybe – enhance their ability to become ‘better’ social actors…’

This chapter follows nicely from Graham Ferris and Rebecca Huxley-Binns’ chapter, ‘What Students Care About and Why We Should Care’ in the same book. They rightly argue at p 195, ‘…that those delivering education should explicitly and deliberately consider the purposes of learners, meaning the things they do or might value, or care about, or strive for. Whilst the choice of purpose is that of the learner, we can use our experience and knowledge of teaching law in higher education to facilitate purpose, choice or value adoption or rejection.’

It seems to me that these positions are applicable to the practical legal training environment, not just the academy. That said, some might be understandably concerned about leaning too far toward what students care about and losing sight of the integrity of the training and the PLT accreditation. This is the ‘springboard’ for my following comments.

Taking the skills workshop situation as an example, we can design the instruction and plan certain learning objectives for this experiential learning experience.
There may be ‘global’ objectives embodied by ‘global’ statements in the Competency Standards for Entry-Level Lawyers; ‘instructional’ objectives the students’ performance goals, the conditions for that performance, and the the criterion for satisfactory performance. We can frame specific educational objectives as a subject-verb-object sentence: ‘[During the role-play interview] the student will be able to obtain all instructions necessary [to commence work on the client’s problem and to provide preliminary advice in plain language]’. We could specify what ‘plain language’ means in this context (e.g. we could decide to exclude ‘txt-speech’, and explain why – notions of professionalism, regularity, respect, integrity, etc.) Here, I’ve drawn on Mager, R.F., Preparing Instructional Objectives. 1997, Atlanta, Georgia, USA: CEP Press.

It is also possible to explicitly plan the learning across different levels of processing (e.g. retrieval, comprehension, analysis, knowledge utilisation, meta-cognition, and the self-system/affective level) across different domains of learning (information, mental procedures, psychomotor procedures). Here, I’ve drawn on Marzano, R.J. and J.S. Kendall, eds. The New Taxonomy of Educational Objectives. 2nd ed. 2007, Corwin Press: Thousand Oaks, California. I have previously blogged about this taxonomy.

Taking the above into account when planning the workshop, we can decide to adopt certain evidence-based teaching methods, such as advanced organisers, graphic organisers, whole-class interactive or co-operative learning approaches, and use a range of media to do this. I am drawing on Petty, Geoff, Evidence-based Teaching – A Practical Approach (Nelson Thornes, 2nd ed, 2009) here. Of course, it is important that the material and methods we use are ‘authentic’ and relevant to the learning objectives.

When we actually ‘perform’ or ‘deliver’ the workshop, ‘stuff’ comes up during discussions or arising out of the practice role-play interviews. It may be the student asks a question about how to handle a certain situation, or a student recalls an analogous situation from their volunteer legal work or graduate placement. We might respond by opening the question up to discussion, or share an illustrative ‘war story’ anecdote from our own practice to give an example of how we solved a problem. These are usually good opportunities to employ, and model, ‘reflection-in-action’, and ‘reflection-on-action’ approaches to teaching, learning and professional practice. I am thinking about the work of Chris Argyris and Donald Schön, but in particular Schön’s book., Educating the reflective practitioner, Jossey-Bass higher education series. (Jossey-Bass, 1st pbk. print. ed, 1990). Peter Senge is also good to read about this – Senge, Peter M., The Fifth Discipline – The Art & Practice of the Learning Organisation (Doubleday Business, 2nd ed, 2006).

These interactions have social as well as educational qualities; both of which involve the students emotionally to some extent.

Running through all of this, from planning to delivery, are considerations concerning the affective domain / self-system level of processing learning. What students want and feel is relevant to emotionally driven judgements about whether the learning task is important and relevant to their learning goals and their ability to complete the learning task: motivation to learn = value x expectancy. This can be especially important with adult learners who can resist what they perceive as ‘supplementary’ learning (Atherton, James, ‘Resistance to Learning: A Discussion Based on Participants in In-Service Professional Training Programme’ (1999) 51(1) Journal of Vocational Education and Training: The Vocational Aspect of Education 77).

Some tend to focus on these aspects in relation to initial engagement, but I think they’re equally important to student satisfaction with the learning and could possibly affect their feelings about continuing professional education. In other words, what we do during the interactions is relevant to the immediate educational objective, but also could affect young lawyers’ commitment to life-long learning, and either impinge or enhance their satisfaction with their professional development, and their chosen profession. I think these factors are also relevant in training entry-level lawyers to pursue thinking about ethics and professional responsibility.

So, I agree that it is important to be clear about what are our teaching and learning goals in facilitating our students construction of themselves as lawyers; I think it is important that we are able to justify our instructional decision-making; it seems to me that both of those propositions involve developing our understanding of the affective domain of learning in practical legal training so we can continually improve the way we train lawyers.

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‘Transactional Learning Environment’ and ‘Developing Professional Character’, in Affect and Legal Education

Karen Barton and Fiona Westwood’s chapter, ‘Developing Professional Character – Trust, Values and Learning’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education – Emotion in Learning and Teaching the Law, Emerging Legal Learning (Ashgate, 2011) 235, is a very good read.

This is a copy of my post to the LinkedIn discussion group, Practical Legal Training Educators Australia.

The chapter has helpful introductory parts about the ‘repositioning of professionalism and the role of legal education’ (p 237), and ‘mastering the craft of lawyering’ using the ‘head, hand and heart’ metaphor (p 238). The authors identify 4 categories of student ‘firms’ that emerge in the transactional legal education environment, in a learning/trust matrix, where each firm has a mix ‘high’ or ‘low’ levels of trust and learning (p 242). The objective, of course, is to develop high trust/high learning student firms (p 244). The authors describe some of the strategies taken as part of an early intervention approach to identify student firms that seem to be tending toward low trust and/or low learning types. These include training of practice management tutors, and techniques to encourage reflective practices amongst the students including reflection on own individual and group work styles and common values (pp 244-8).

Selfishly perhaps, I wanted to know a bit more detail about actual student-student interactions and tutor-student interactions given the importance of ‘forming a team’ (p 246) and that ‘shared values were an integral part’ of the activity (p 247). At p 247, the authors note that ‘…our students did not choose their fellow team members … it was important that they learned to feel secure with each other … this feeling of security was facilitated by their initial discussions.’ It would be good to see more information in the article about those initial discussions, the medium through which they were conducted, and the strategies and methods used to facilitate them, given the importance of those discussions to setting up the activity, as reflected in the student quotes, particularly one on p 251, ‘My concern for the success of the firm began from its inception…’.

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Using Graphic Organisers in Practical Legal Training

Did you know that substantial research and scholarship shows that Graphic Organisers (such as mind maps, flow charts, and other visual representations) can produce improvements in learning outcomes with average effect sizes of 1.2 to 1.3? See more.

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