Best Practices for Legal Education

I recently spent a week in close proximity to four of my clinical students. We participated in a high-stakes, out-of-state hearing for one of our clients in the Wisconsin Innocence Project. The trip topped off a summer’s worth of intense preparation that involved distilling a few thousand pages of transcripts and briefing into an hour-long presentation to the court. Prior to the trip the students created charts, briefed cases, wrote potential counter-arguments, and developed a highly effective PowerPoint to assist me in the closing argument.

The week started with a 14-hour drive. Once we arrived at our destination, we jumped right into last-minute preparations. We met with our client and local counsel, organized our materials, and tested the technology that we would use. The day before the hearing, we gathered with other attorneys in a windowless hotel meeting room to coordinate and revise our presentations for the defendants we represented. The students played more than just a logistical role. They helped revise arguments and edit the presentations. They relentlessly checked the record, providing the detail needed to make our presentations persuasive. As the preparation reached into the evening, still in the windowless hotel room, one of the attorneys reminded the students that we were aiming for “situational excellence” as we finalized our preparation.

Those words of wisdom, uttered by a long-time, excellent public defender, struck a chord with the students. After the hearing, on our long drive home, they talked about “situational excellence.” I wanted to know more about why they thought this was such great advice – to aim for situational excellence. My students impressed me with their insight. They confessed that they often become paralyzed by perfection. The phrase “situation excellence” told them that there’s a time when you must move forward even when you don’t feel like you’ve reached perfection.

Concerned that the phrase might lead them to believe that with few resources, situational excellence may mean that poorer clients get less service. They pushed back. Situational excellence, they said, means to be excellent in this moment. “You should be your best self. That means be your best even if the case is pro bono.” Connecting the phrase to a legal claim we often litigate – ineffective assistance of counsel – a student said, “When you don’t have the resources you know your client needs, you must request them. If you don’t get them, you must make your objections clear. That’s situational excellence.”  Another said, “You can’t give up. Each situation gives you a new opportunity to excellently advocate for your client no matter what your circumstances.”

The discussion made me wonder if we are preparing our students for the situations that arise in the typical practice environment. In our clinic, we teach students to be relentless in their pursuit of perfection. We ask them to call the expert from Stanford Medical School. Maybe she’ll talk to us. Maybe she can provide an answer. We slow things down, working through multiple drafts of emails and letters. We workshop our briefs among the class and the experts in the building. We talk through the interview of a crucial witness for weeks before we actually meet. Are we setting them up to feel like failures once they enter the hustle and bustle of practice?

Research shows that our clinical teaching methods are optimal for learning knew information and new skills. By relentlessly pursuing perfection, we expose students to what ideal representation looks like. By slowing the process down and allowing for lots of feedback and reflection, we help students develop judgment. They learn to critique their own work. We provide a scaffold for them as they develop on a pathway to expertise. This is why clinical education is so important. If we pursue perfection when we have time, we can make better decisions about what excellent representation would look like in any given setting.

I’ve learned from my students’ insight. I’ve realized that we often fail to explicitly inform our students of the long path one travels from novice to expert. The public defender whose wisdom they have clung to spent decades practicing excellently. She knows what excellence means in any given situation. She also knew how to synthesize our massive record into a powerful argument in lightning speed compared to the snail’s pace we took to arrive at our argument.

Knowing the difference between learning and practicing law is crucial to our students’ improvement. Students who can apply their learning in a near-practice setting will have an edge when they begin their practice. But could we better prepare our students by introducing them to the concept of situational excellence? We could certainly be more explicit about how they apply their clinical experience to less than ideal settings. If the students practice excellence under ideal circumstances, their best selves will be better prepared to produce excellence under pressure.

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