Best Practices for Legal Education

For those of you who aren’t on the lawclinic listserve, I’d like to share with you a fascinating thread on the list this week demonstrating just how tech-savvy we’re all becoming, and also how the concept of Best Practices in Legal Education is an ever-broadening one.

Kim Diana Connolly [(kimconno@buffalo.edu, Vice Dean for Legal Skills; Director, Clinical Legal Education; Director, Environmental Law Program; Of Counsel, Environmental Law Clinic] was inviting list members to a newly-forming Law Clinic Computing in the Clouds Best Practices Task Force, a result of her experience drafting a cloud-computing protocol for Buffalo’s clinical program. The project for the Task Force is to tackle the issues relating to cloud computing that have been raised on the list, from email and smart phones to file storage and management systems, etc. Kim reported that developing a protocol had been a significantly more complex undertaking than first anticipated. Students, faculty, and now the IT department have become involved in the project. For public law schools, the complexity is enhanced, as they are subject to Freedom of Information requests.

Our experience in the UMass clinics is a similar one; it has been complicated and time-consuming to determine both the professional and practical aspects of joining “the cloud.” Where does encryption come in? With which University-based teams should we coordinate? What’s the cost? How much time is involved? So I was grateful to learn that we can join with a group of other clinicians struggling with precisely the same issues. Its good to know that WE’RE NOT ALONE. Kim has suggested starting a separate discussion group to share research and perhaps develop a “best practices” document for use by the clinical community.

Her post immediately received many responses. Clearly this is an issue of significance to many in the clinical world; the interest, though, is not limited to law schools, as yesterday I received an email from the ABA inviting me to a free session on “ethically moving your law practice to the cloud.”

If you are interested in joining the discussion and ad hoc Task Force, Kim’s invited us to email their Clinical Program Paralegal Elisa Galloway at elisagal@buffalo.edu.

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For this entry, I’ve got just questions for you, hoping they prompt a conversation among us about one, several, or ALL of them. The questions concern your experiences incorporating the principles of Best Practices in your non-clinical classes.

At the beginning of the course, did you explain to your students what you were going to do and why?  If so, what did you say?  Did you also offer a written explanation?  Does your experience indicate that your explanations were effective?

Have you noticed differences in your students’ ease in learning the curriculum?  If so, can you attribute it to these methods?  Can you tell us about it?

Are there certain types of class activities preferred by students more than others?  What are they?

What about your students’ responses to these changes in the classroom – have they been receptive (or not)?  In any event, how have you learned of their reactions?  Verbally? In writing?

Have you formulated a specific evaluation form to gather feedback?  If so, could you share it?

Have you’ve used these methods in multiple law schools, so that you’re able to compare responses when you’ve been relatively singular in doing it, compared with when you’ve been one among many?  Can you tell us about these experiences?

Let’s hear from you out there!

[For those interested in reading more about the process of transforming the law school classroom, take a look at Introduction:  Teaching in a Transformative Age:  The Law School of the Future (Seattle Journal for Social Justice, Vol. 10, p. 1, 2011), an introduction to the papers published from the 2010 Conference of the Society of American Law Teachers, Teaching in a Transformative Age:  The Law School of the Future.]

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The following article, Unaccredited Law School Sparks Debate With Lawsuit Against Bar Association by Katherine Mangan, comes to us from the Chronicle of Higher Education.

The argument is that the ABA and accredited schools are using their market dominance to prevent new schools from gaining accreditation. Here is an excerpt:

A Tennessee law school’s lawsuit against the American Bar Association has sparked considerable discussion in legal-education circles about the ABA’s gatekeeper role in approving new schools.

Lincoln Memorial University’s Duncan School of Law filed its complaint against the ABA in federal court on December 22, just days after learning that the association’s accrediting arm had denied its bid for provisional accreditation.

Duncan, which opened in 2009 with the goal of helping students and potential clients in Appalachia, contends that the ABA is unfairly limiting competition by excluding new schools that want to offer a relatively affordable option for underrepresented students.

But others, including some Congressional critics, say the ABA hasn’t been tough enough in enforcing its standards, allowing too many new schools to open at a time when students’ job prospects are shrinking.

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I think it does.

In my experience, it is unusual for a professor or dean to encourage a student to forego taking or to drop a so-called stand up or doctrinal class, particularly if it’s required. The opposite situation prevails in clinics, which presently are rarely required; in these classes, the pressure to maintain in clinic a student having grave difficulties is substantially reduced for both student and teacher. That clinics are rarely required means, of course, that they are largely relegated to “elective” status and thereby on a lower hierarchical plane than other, required doctrinal courses. This fact conspires to permit us, professors teaching these clinical courses, to fall prey to viewing them as “less-than” the classes taught along the Langdellian model.

What might be the implications of this observation? At least it would seem that we clinical professors could try to appreciate the significance of what we do and of what we’re imparting in our students. This appreciation will encourage us to encourage our students not to give up if and when “the going gets tough” in the course of handling difficult cases and challenging clients. In addition, this observation can serve as another call, heard frequently these days if not at law faculty meetings at least in the mainstream press, that clinical education be part of the required law school curriculum.

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It would be great to hear from others who have been trying to incorporate small group work into their large  classes. This is something I’ve been able to do successfully in the past with classes of no more than 30 or so, but trying it with a class of 70 this year was challenging. It’s not the actual working of the groups that declined– the level of participation there, with groups tasked specifically, has remained high. My concern is how to maintain the same level of involvement when we come back together to report on what the groups came up with. With at least 13 groups, that’s 13 Recorders/Reporters. So those 13 are involved, but keeping the rest in “active-involvement” mode is the challenge. And, if the culmination of the small group project doesn’t engage actively the other 50 in the class, I’m not going to be satisfied. Have any if you developed ways to solve this problem?  If you have, could you please share them with us so we all can have a better handle on making large classes feel smaller?

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The faculty at the University of Massachusetts School of Law – Dartmouth started reviewing the Stuckey (and others) Best Practices for Legal Education a couple of years ago, but have become a bit more serious about it in recent months.  Last fall, Mary Lynch and Carrie Kaas presented and lead a short workshop at the School, not just introducing the principles of Best Practices (and the Carnegie Report), but encouraging us to continue our discussions after they left with a view to instilling Best Practices principles into our particular curriculum.  We obediently divided ourselves into sub-groups based on the areas of the curriculum in which we wanted to focus — the First Year, the Upper Level, or the Curriculum as a whole.  The group I chose met only once, and I think was similar to the others, given the distraction of the transformation of Southern New England into the new UMass Law School. An added distraction developed when we all realized that the curriculum with which we had been working was going to have to be revised to reflect our more public-spirited mission, among other factors.  So in the Spring we agreed that, when we next met about Best Practices, we would focus on the last chapter of the book, the one that offers a Model Curriculum.  Finally, we recently attempted this revitalization, and had a free-flowing conversation; the full-time faculty was joined by several other professors from among the legal skills, bar preparation, and academic success departments.

A suggestion made during the conversation seemed to resonate with several participants:  we should develop a list of skill-sets we think all law students should have gained by the time they complete law school.  In order to follow-up on that, since then, a small group (unfortunately, and a possible issue for a future blog posts, the group was exceedingly small and was not representative of the meeting’s participant-groups) of volunteers has met, enjoyed a likely brainstorming session, and developed a tentative list of the skill-sets. 

Where are we now?  We’ve distributed this list to the entire faculty, have asked for input — additions, deletions, etc. — and have invited them all to our meeting this month, during which we hope to match courses with the skill-sets we’ve come up with.

Stay tuned for reports on our progress, and on discussions of participation, buy-in, buy-out, and other controversial items.  Please email me at ischarf@umassd.edu if you’d like a copy of the product once it’s finalized.

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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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In the Immigration Clinic at Southern New England (shortly UMass School of Law – Dartmouth), which is reverting to a full-year curriculum after two years of experimenting with a single semester, I have been trying to adjust the curriculum to implement several of the principles embodied in Best Practices. For those of you who recently attended the AALS Annual Clinical Conference in Baltimore, you may recognize in some of these adjustments hints of Backward Design; that was unintentional. I’ve been forced to conclude, after having attended the conference and learned about Backward Design, that I must be a “natural” Backward Design person!

I set out to restructure the clinic along with the Clinic’s Graduate Fellow, Julie Rahbany, by first identifying overall goals as well as specific ones for student learning. Once that was accomplished, we devised a variety of assessment tools through which students could demonstrate competence toward achieving those goals. Then we devised a system through which the grading criteria would be explicit and predictable, while also providing more predictable and structured feedback to students throughout the term.

The first step, engaged in last fall, was to review the syllabus; the semester-long course was able to be divided rather naturally into seven primary content areas (I expect that for next year’s full-year course we will be creating more competencies.). For each area, we created competency exercises employing a variety of learning modalities (e.g., oral presentation; drafting court documents; client interviewing; drafting direct, cross, and redirect exams; creating organizational flow-charts for easy-reference to complicated legal principles, etc.). The purpose of using these competencies is to provide the students opportunities to learn specific and important lawyering skills as well as to demonstrate their competence in these areas. This semester we implemented this practice, which was of course supplemented by class assignments more specifically focused on ensuring that the students are learning the legal principles relevant to our immigration practice.

Best Practices emphasizes the importance of students knowing from the outset what is expected of them – what skills they are expected to master during the course of their clinic participation, and how they will be evaluated on those skills. To that end, I began my overhaul by re-working the grading criteria and creating a written grading rubric to be distributed during Clinic Orientation. The document reflects the skills practiced in the competencies as well as the other aspects of lawyering that we emphasize in clinic. I will use the same document throughout the course of clinic, during mid-semester evaluations as well as during the final evaluation. In the end, the students will have worked with it, explicitly, on three occasions each semester. This repetition, which we know is necessary to enhance learning, will reinforce the importance of the concepts referred-to in the Grading Criteria Document. While for mid-semester evaluations I will only rate the students on the basis of Check, Check-plus, and Check-minus, at the stage of final evaluation, letter grades will be assigned. The document will also be the basis for the students’ final self-evaluations.

In the event readers are interested, I have attached both the Grading Rubric and the Competency explanation distributed to the students.

Please stay tuned next year, as we assess the effectiveness of the changes adopted.

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