SoTL, PLT, and the paramount obligation proposition

LawTeacher2015The good people at The Law Teacher have published my article about some insights I gleaned from interviews with PLT practitioners. The Law Teacher is an international legal education journal well worth a subscription. Click here to find an online version of my article, Kristoffer Greaves (2015): Is scholarship of teaching and learning in practical legal training a professional responsibility?, The Law Teacher, DOI: 10.1080/03069400.2014.991203. This article is paywalled, but hopefully you can get access to it via your institution’s library.

In précis, during interviews with Australian PLT practitioners in mid-2013 I used a question about lawyers’ paramount obligations to the court to provoke discussion about institutional and extra-institutional forces affecting scholarship of teaching and learning in institutional PLT. The article is a necessarily brief analysis of interviewees’ responses to the question. The interviews form part of the data collected for  my PhD thesis, which I hope to submit for examination around the end of March this year.

 

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“Digital Literacy” in #legaled, begins here?

There is an ongoing discussion about digital technologies in education and practice – in legal education, practical legal training and professional practice. It is a discussion that recasts itself from time to time, e.g. as “digital literacy”. My interest in this area involves a couple of prisms – academic and professional legal education, professional and individual practices. I studied flexible, online and distance education (“FODE”) as a subject back in 2009 as part of my Masters in Professional Education and Training at Deakin University. In the context of some recent discussions, e.g. Kate Galloway’s posts at the Curl blog, I reviewed my notes from 2009 and put these online via a YouTube video. (More after the video)

I’m focusing on teaching and learning here, whereas the digital literacy debate is broader, and includes issues such as the legal profession’s engagement with digital technologies in practice. I would argue, however, that some attitudes about digital literacy begin in the formative stages of legal education, and the assumptions of regulators who accredit and approve courses. These notes date from 2009, but some issues are durable. I’ll mention a few of these here.

“Interactions” – some commentators seem to conceptualise FODE interactions as wholly online interactions. Interactions in teaching and learning are important, and there appears to be some anxiety about the nature and quality of interactions in #legaled. See, for example the Roper Report [1] and Gaye Lansdell’s publications on this [2][3]. “Online-ness” is treated as antithetical in #legaled, and particularly in PLT. What is often overlooked is the “blended” nature of existing courses, i.e. a blend of face-to-face and online interactions, and in PLT the work experience and reflective component of the courses. I recall attending a final plenary session at the 2012 APLEC conference in Hobart, in which the panel was manifestly disengaged from the existence of blended learning with FODE as one (multi-dimensional) tool in the instructional design toolbox. The sector suffers from a lack of local empirical research concerning interactions in FODE and teaching and learning in legal education and PLT. We need this research to inform regulators and educators. Also, as the video mentions, FODE and non-FODE “interactions” occur across many dimensions. Interactions are important, and a holistic approach is necessary for effective teaching and learning. This includes recognition of a reflexive-dialectical dimension for interactions, involving reflections in individual and extra-individual aspects of teaching and learning.

“Enablement” and “Social Justice” – FODE has the capacity to overcome restrictions in time and space, and to provide alternative means of communication and engagement. This capacity potentially enables individuals, who might otherwise be denied equal opportunity, to engage in legal education and training. I have personal experience of this as a deaf person, but I’m not just talking about disability. In Australia, overcoming the “tyranny of distance” remains an issue for rural and regional areas. Information and communications technology is increasingly affordable across socio-economic levels. I believe the legal profession would be the better for diversity in its membership – and the equity and parity of opportunity that FODE can contribute in legal education plays its part in this.

“Flexibility and Overload” – It is a double-edged sword. Flexibility can offer equity and parity in opportunities, but there are some institutional and individual issues on the teaching side of things. There seems to me to be a widespread mistaken belief that FODE is a cheap business model. Well, it is, if you’re not really concerned about whether your teaching and learning model is effective and satisfactory. If you do care, then FODE takes substantial investment of planning, funding, time and personnel to realise  good outcomes. There seems to be an increasing tendency of institutions to casualise teaching positions in FODE environments, to use practitioners without adequate training in teaching and learning theory and practice and/or FODE technologies. That tendency, together with inadequate planning or instructional design, undermines the effectiveness of FODE. Also, I believe it places an unfair burden on teachers, particularly those who really care about their effectiveness, because they must often compensate for inadequacies in planning, design and training by contributing substantial hours of unpaid work.

“Industrialisation” of #legaled – Otto Peters [4][5] foresaw a situation where industrialised education would involve employing less-qualified instructors to “deliver” instruction to learners, with qualified personnel reserved for planning and policy. If teaching and learning was like the mass production of widgets (“work-ready lawyers”), the industrialised model might work okay. But I contend it isn’t, and it doesn’t. I mentioned above the reflexive-dialectical aspects of teaching and learning. Part of this involves thinking about the teachers and practical legal training practitioners. Individuals with substantial intellectual and practical expertise have self actualisation needs that should be considered, if they are to thrive and remain motivated.[6] To neglect this consideration disrespects and undermines those individuals. This aspect can communicate itself to learners, who might under-rate the relevance and importance of the teaching and so, in turn, undermine the learners’ motivation to engage with learning.

“thinking” – I am an “early adopter” of technologies, and personally believe FODE has enormous potential. I argue that it is important, however, to remember that technologies are extensions or enablers of action. They do not substitute for intellectual engagement, critical thinking, methodologies or planning, on which they depend.

[1] Christopher Roper, ‘Standards for Approving Practical Legal Training Courses and Providers’ (Victoria Council of Legal Education, 2008).
[2] Gaye Lansdell, Have We Forsaken Quality and Professionalism for Technological Convenience in the Training of Lawyers in the 21st Century? The ‘Flexible Learning’Paradigm (2010).
[3] Gaye T Lansdell, ‘Have We ‘Pushed the Boat Out Too Far’ in Providing Online Practical Legal Training? A Guide to Best Practices for Future Programs’ (2009) 19(1 & 2) Legal Education Review 149.
[4] Otto Peters, 1969, ‘New Perspectives in Correspondence Study in Europe’, paper presented to 8th conference of the International Council on Correspondence Education, Paris, May 1969, <http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/33/fb/4c.pdf>.
[5] Otto Peters, ‘Distance education and industrial production: a comparative interpretation in outine’ in D Stewart, D Keegan and B Holmberg (eds), Distance Education: International Perspectives (1983) 95.
[6] Abraham Harold Maslow, ‘A theory of human motivation’ (1943) 50(4) Psychological Review 370.

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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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“Thinking Like a Lawyer” v “Thinking Like a Teacher” – Fun with Google Scholar

In 2013, I presented some research findings at the Australasian Professional Legal Education Council (“APLEC”) annual conference. The findings were drawn from a question I asked in interviews with 35 PLT practitioners, ‘”Is thinking like a lawyer different to thinking like a teacher?” You can view a copy of the Prezi here.

I’m writing up the findings for my thesis, and I thought I would check Google Scholar for recent literature. I noticed this:

Google Scholar searched 21 May 2014
Google Scholar searched 21 May 2014

Seems a lot of thinking (or writing) about “thinking like a lawyer” is going on. Teaching? Not so much. This is a topic of great interest to me in academic and professional legal education. As I’ve posted recently, there are good reasons for serious engagement with scholarship of teaching and learning.

 

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Symposium – Doing Cultural Studies: Interrogating Practice

doing cultural theoryI am pleased I will be attending and presenting at the “Doing Cultural Studies: Interrogating Practice” intermezzo symposium at Swinburne University of Technology on 3 December 2013. This will be a great opportunity to gain some interdisciplinary insights about culture and practice from emerging scholars in this area. The abstract for my proposed presentation is here.

 

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Checklists – ‘Life, Death…’

I’m watching a very interesting documentary featuring Dr Kevin Fong, ‘Life, Death and Mistakes’.*  In this production, Dr Fong investigates how medical practice is looking to other disciplines for methods aimed at reducing mistakes.

A key method involves using checklists. A one page checklist has proven successful in the airline industry. Inspired by this, medical researchers adopted checklists to improve patient safety with dramatic (and replicated) results. The World Health Organisation (WHO) makes patient safety checklists freely available here. See the Surgical Safety Checklist for an example of a how a well designed checklist can be simple and easy to use.

In the context of teaching and mentoring lawyers’ skills in practical legal training, I think of checklists as an essential aid in legal practice (client interviewing and file checklists for specific practice areas), but also as ‘advance organisers‘ for teaching and learning interactions too.

Sometimes simple things are the best. If we remember to use them.

I recommend watching the documentary. Lawyers and legal educators can learn much from other disciplines.

*’Life, Death and Mistakes’ (Horizon) Dr Kevin Fong (Presenter) David Stewart (Director) BBC Production, screened 23 September 2013 on SBS1- available SBS on demand after broadcast.

 

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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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PleagleTrainer PhD candidature confirmed

hikingI am pleased/relieved to confirm my PhD candidature was confirmed yesterday at confirmation colloquium. Simply put, my research is focused on how lawyers teaching practical legal training engage with scholarship of teaching.

My research plan involves a multi-theoretical and multi-methodological approach, about which I will write more in future. I feel fortunate to have supportive, wise and experienced principal supervisor and associate supervisors. The colloquium panel was positive and constructive, with helpful advice about future work.

Now candidature is confirmed, I must attend to the ethics approval process (I intend to use semi-structured interviews as part of my data collection strategy). I am planning a post about the Australian ethics approval process. I sought and obtained ethics approval for my masters research, and although sometimes frustrating, overall I found it to be a constructive activity.

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