Part II – Infusing Best Practices into an Immigration Clinic – Underperformance Needn’t be Feared

Underperformance, rather, can be instructive.

A key aspect of the clinical experience is the chance for students to try out new skills and make mistakes in a setting that is both safe and provides feedback to guide them towards improvement. Students’ mistakes fall into roughly two categories: conceptual errors (failing to understand the law, how the law relates to their clients’ situations, etc.) and performance-related ones (failing to comport with standards of Best Practices as defined by sources such as ethical rules, court rules, etc.).

Formative feedback is best employed at the time students engage in lawyering activities; it must be both specific and clear. Without this specificity and clarity, students are not likely to understand what they did, said, or how they acted “in practice” that fell short of their goal. In order for students to internalize the lessons they’re learning and thereby enhance their abilities to be self-reflective life-long learners, they need clear, specific feedback during their clinical experiences in law school.

It is with these principles in mind that we set out to develop a warning system format for the Immigration Law Clinic. The form developed, entitled “Notice of Underperformance,” is based on the grading rubric I discussed and attached to my recent Blog entry (see this Blog, May 24, 2010). It was enhanced by recent experiences in the Clinic that reflected students’ difficulties (for example, receiving an email from a student telling me that, in effect, after he completed a particular task, he would no longer be working on that client’s case!).

Rather than seeing the Underperformance Notice as a punishment, we hope that students will view it as a productive tool to help them understand how to “Best Practice” law. We will be using it for the first time this fall; it will buttress the grading criteria (presented as a rubric — also see my recent Blog entry of May 24) distributed to students in Orientation and to be used throughout the year. We hope that these criteria outlined in the grading rubric, which identify goals for the students’ Clinic work, will be enhanced by use of the Underperformance Notice, which will force students to pay attention to issues as they arise during their client representation.

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