Experiential Learning: ABA Standards 303 and 304

Although “experiential learning” has been a term of interest to many legal educators for years, the ABA’s new standards have brought it front and center by mandating that schools “require[] each student to satisfactorily complete at least . . . one or more experiential course(s) totaling at least six credit hours.”

Two well-known ways to meet the requirement are law clinics and field placements. Law schools across the country already widely offer both. But the third path to satisfying the requirement, “simulation courses,” is less familiar to many professors. So what do “simulation courses” require?

Standards 303 and 304 together define what a course must include to be a “simulation course.” First, and likely most importantly, the course must be “primarily experiential in nature.” According to a March 2015 ABA Guidance Memo on these standards, that means the course is essentially, mostly, or chiefly experiential and “the substantive law or doctrinal material . . . [is] incidental to [the course].”  The latter element is an important limitation: it could mean, depending on how the ABA interprets the standard, that even courses rich with simulation exercises are not a “simulation course” if the course is using simulations primarily to teach doctrinal law. In fact, the same guidance memo notes that “[i]nserting skills components in otherwise doctrinal courses” is great, but it does not necessarily mean the course falls under the “simulation course” umbrella. It would be unfortunate if highly experiential doctrinal courses along the lines of “The Practice of [Specific Doctrinal Area]” did not qualify under these standards simply because they were teaching students skills relevant to a particular area of the law.

Next, the course must provide “substantial experience not involving an actual client that is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks.” While many skills-based courses will meet this element—for example, courses focusing on interviewing clients, drafting legal documents, and mediation—other courses are more debatable. Is a course teaching students how to run a practice, manage cases, track time and bill, and related pragmatic skills “reasonably similar to the experience of a lawyer” under the standard? It is unclear, but a good argument can be made that it is—those skills fall under Standard 302‘s explanation of what skills a law school curriculum should foster, e.g. “organization and management of legal work” (interpretation 302-1).

The remaining requirements are more straightforward. The substantial experience must occur within “a set of facts and circumstances devised or adopted by a faculty member,” and there must be multiple opportunities for performance, feedback from a faculty member, and self-evaluation. Most courses that clear the above hurdles will naturally meet these. Similarly, the requirement that a faculty member directly supervise each student’s performance will also be met in most cases.

Finally, there must be “a classroom instructional component,” the class must integrate doctrine, theory, skills, and legal ethics, and the class must “engage students in performance of one or more of the professional skills identified in Standard 302” (e.g.  counseling, negotiation, trial practice, and many other professional skills). These requirements are relatively straight-forward but will pose a problem for some for-credit co-curriculars like moot court and trial team, which often do not require a classroom component beyond the team practices (which the guidance memo indicates will generally not be enough).  Interested parties can learn more in the guidance memo about how such programs can qualify for the experiential credits.

In sum, the revised ABA standards are breathing new life into experiential learning across the nation. Combined with the prospect of state-specific experiential learning requirements, mandatory experiential learning is here to stay. However, with attention to Standards 303 and 304 and study of the guidance memo, simulation courses are a third option for the required six credits.

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