Learning by doing

The release of the Carnegie Foundation for the Advancement of Teaching’s report on legal education in 2007 caused quite a stir in the law community. The report, “Educating Lawyers: Preparation for the Profession of Law,” featured a study of 16 law schools in the United States and Canada that found the schools were conducting too much theoretical teaching and not offering enough ethical and practical training. It recommended that law schools integrate legal analysis, ethics training, and practical experience into their curricula.
“Students need a dynamic curriculum that moves them back and forth between understanding and enactment, experience and analysis,” the report stated. “Law schools face an increasingly urgent need to bridge the gap between analytical and practical knowledge, and a demand for more robust professional integrity.”

The report cited two major limitations of legal education:

1. “Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients. Neither understanding of the law is exhaustive, of course, but law school’s typically unbalanced emphasis on the one perspective can create problems as the students move into practice.”

2. “Law schools fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills. Students need opportunities to learn about, reflect on, and practice [sic] the responsibilities of legal professionals. Despite progress in making legal ethics a part of the curriculum, law schools rarely pay consistent attention to the social and cultural contexts of legal institutions and the varied forms of legal practice. To engage the moral imagination of students as they move toward professional practice, seminaries and medical, business, and engineering schools employ well-elaborated case studies of professional work. Law schools, which pioneered the use of case teaching, only occasionally do so.”

Governor General David Johnston, himself a former law school dean at the University of Western Ontario, echoed the report’s findings in his speech at the Canadian Bar Association conference in Halifax last summer. “In my judgment, we have allowed too great a divide to develop between academia and the profession. We do not cure this by forcing the profession back in, but rather by making the compelling case that the three years at law school mark the beginning of the journey of preparing professionals with all three apprenticeships.

“We should not leave the practical and the ethnical apprenticeships to the end — articling and the bar admission course. We should start with how we choose an entering class. . . . Beginning in law schools, we need to integrate these three apprenticeships — the cognitive, the practical, the ethical-social — as one mutually reinforcing continuum,” he offered.

“As to curriculum in law, I would integrate the bar admission course with the LLB, similar to what medicine does,” Johnston suggested. “I would also intersperse internships or articling throughout the academic years. I would pair academic and practising lawyers as much as possible in the curriculum, in order to integrate the three apprenticeships.”

In the United States, law schools — including Harvard University, Stanford University, the University of Michigan, and New York University — have made radical changes to their curricula in order to incorporate more learning through experience. For example, at the Washington and Lee University School of Law, every third-year course is now hands-on. In Canada, it seems that most law schools are lagging. However, the movement is beginning. For instance, starting in the 2012 academic year, Osgoode Hall Law School will be the first Canadian law school to require students to take part in experiential learning in order to graduate.

Osgoode dean Lorne Sossin advocates more hands-on learning in legal education. Regardless of the type of experiential learning, whether it’s participating in one of the law school’s clinics or one of its various intensive programs, he says it breaks down the barriers between the classroom and community, effectively creating better learning opportunities for students. “What we’re hoping is it sets our graduates up to have a real advantage that not every graduate of every law school will have,” he says. “[It’s] that experiential component that is very much what gives them insight into, for example, the different perspectives or lenses that a client might have, or a regulator might have, or the government might have, or the justice system might have. You start to look at issues from those different perspectives when you’ve seen how they play out in action. I think those are things that if you just go to law school and sit in the classroom for three years, you’re just less likely to get exposed to.”

It also tends to be a more notable experience, says Sossin. “Invariably when I ask [Osgoode graduates] about their memories of what stuck with them, it’s the intensive program, it’s the clinic; it’s these kinds of learning experiences that also create the lasting memories. And I think those hours may have been the same as they spent on tasks, but it stays with them and is likelier to be those career-altering or perspective-altering experiences,” he says.

Adam Campbell, an articling student at labour and employment law firm Harris & Co. LLP in Vancouver, agrees that his time at the University of Victoria Environmental Law Centre was his most memorable experience during law school. At the clinic, he worked on one main file related to storm water and the infrastructural issues with the city’s drainage system. He says his clinical work was much more inspiring than any of his classroom work, and even more beneficial than his articling term so far. “At times I actually found [the clinical work] more useful than the articling period that I’m doing right now. I had way more control over an actual file for the entire thing than I have so far while articling,” he says.

In an article he wrote for 4Students online, Michael Oxman points out the benefits he got from working at UVic’s Business Law Clinic. “I found it useful to get feedback from lawyers as opposed to law school professors. While professors may compare work against theoretical models and research papers, practitioners are focused on how work functions in the real world. Rhetoric and purple prose are discouraged. Rather than contemplating remote hypotheticals, students are pushed to consider the practical realities of running a business and the tangible concerns of business people.”

Campbell suggests students should have the option of completing experiential learning courses instead of articling, as it would add value to the student’s experience as well as the community. “[Law students] do all these moots and funny situations like that, which are sort of make-believe, when you can do exactly the same kind of experience actually in a courtroom . . . which would give you the same experience as a moot except you’re actually using your skills to help somebody,” he argues.

In Ontario, the option of taking a practical legal training course instead of articling has recently been proposed by the Law Society of Upper Canada’s articling task force as a possible solution to the province’s articling shortage. That option, among others — including abolishing articling altogether — was submitted in December in the task force’s report to Convocation, the society’s governing council. The task force was formed to address the current articling crisis in Ontario, where there simply aren’t enough articling positions available to accommodate the vast number of law students. Statistics show that the rate of unplaced articling students increased to 12.1 per cent in 2011 from 5.8 per cent in 2008. In recent years, law schools have been increasing their admissions and law firms have not been accepting additional articling students, which has exacerbated the problem.

Vern Krishna, a University of Ottawa law professor and a member of the LSUC articling task force, says it all comes down to one thing: money. Experiential programs tend to be very expensive. With articling, the law firm pays the student, while the cost of the proposed practical legal training course option would be downloaded either onto the students, the law schools, or the law society. “Before anything gets implemented, we have to face the cost consequences squarely in the eye and deal with it,” he says. “There’s no escaping that. Without addressing that issue, the rest is all talk because nobody is going to implement anything without a full assessment of what the costs are.”

The law schools can’t afford additional experiential learning programs unless they receive more funding, says University of Ottawa common law dean Bruce Feldthusen. “Canadian law schools are incredibly underfinanced, especially the ones out of Toronto, and as it is, we have three clinics here and they are hugely expensive. The cost per student is just overwhelming. So even if we thought everybody should be in a clinic — and there’s an argument that every student should at least have one clinical experience in law school — we couldn’t afford it. Unless the bar is prepared to put the money that they’re now putting into articling into supporting clinical education in law schools, I just don’t think it’s feasible.”

Feldthusen doesn’t really see the need for more experiential learning at law schools anyway. “In Ontario, it’s still the case that law students upon graduation are going to get a year of experiential learning called articling. I think that if you look at legal education as a combination of the bar’s role and the law schools’ role, there’s already a huge amount of experiential learning,” he argues.

Nancy Stitt, director of student programs at Goodmans LLP, says law firms aren’t necessarily interested in having more experiential learning at law schools either. “The main purpose of the law schools is not to teach the practical skills. The skills that lawyers will need will vary so much depending on what they end up doing and where they end up going,” she says. “I think the practical options that they give at the law schools should be that; they should be options.”

In hiring articling students, Stitt says an applicant who has hands-on learning experience is not considered to have an advantage over an applicant who doesn’t. “In terms of students coming in here, we will give them what they need. They will get the hands-on training and the hands-on feedback and the hands-on learning when they do it. I think that’s very difficult to replicate in a classroom setting. I don’t think that ever was supposed to be the purpose of law school,” she says.

Sossin begs to differ. “I think experiential learning at law school and articling are designed with different goals in mind. The former is meant to provide a deeper understanding of law while the latter is meant to train lawyers. That said, there are certainly kinds of experiential learning — spending a semester at a legal clinic, for example — which may provide students with similar exposure to legal practice,” he says.

Queen’s University has such a program: the Technology, Engineering and Management course (TEAM), a unique experiential program that goes beyond just law. TEAM is offered to arts, science, engineering, law, commerce, and business students. They are divided into multidisciplinary groups and matched with an industry client to complete an eight-month consulting project. Queen’s law student Joy Wakefield was part of an in-house team that produced a report on the feasibility of converting Perpetual Energy Inc.’s fleet to compressed natural gas vehicles. She told 4Students last fall that students who participate in the course get a sense of the in-house experience and discover the importance of not just producing top-notch legal advice, but also of ensuring it makes business sense. “It gives students a broader perspective, a chance to see how law interacts with business and technical operations.”

Doug Ferguson, director of Western’s Community Legal Services clinic, says there are several ways for law schools to integrate more practical training into their curricula. He says students should have the choice to take a certain number of credits in clinical and ethical courses to reduce or eliminate their articling term — much like the option suggested by the LSUC’s articling task force. Universities could integrate articling into the three years of law school, or offer a capstone course or a simulated summer program where students work at a virtual law firm, similar to the program at the University of Glasgow in Scotland, he suggests. These alternatives would also help address the current articling crisis in Ontario, he adds.

Ferguson claims the lack of discussion between the law society and law schools was a contributing factor to the articling crisis. “I feel that the law schools and the profession have lost touch with each other. One of the issues right now — the reason why we have the articling crisis — is that law schools have increased their admissions; the classes are bigger, but they did that without looking into how it’s going to affect the profession and how it might affect the articling situation. And I think there has to be a closer co-operation in the future between the profession and the law schools,” he says.

“I don’t see articling disappearing. I think it’s still a very valuable way of educating students on legal practice,” Ferguson admits. “But the numbers just don’t support it. It’s not sustainable in its present form so I think we need a supplementary way of doing it and [experiential learning] is one way.”

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