The Evolution of Legal Education

Students enrolled in Lakehead University’s new law program will be able to practise law after completing just three years of law school. No need to article for a year or complete Ontario’s experimental law practice programs.

The Evolution of Legal Education
Illustration: Sebastien Thibault
Students enrolled in Lakehead University’s new law program will be able to practise law after completing just three years of law school. No need to article for a year or complete Ontario’s experimental law practice programs.

Lakehead’s program was approved by the Law Society of Upper Canada at the same time as the new LPP, but Lakehead Law Faculty dean Lee Steusser says its integrated practice curriculum was already headed in that direction before the law society’s mark of approval. “This is something that for probably 20 years or more people have been saying, ‘Look, we should be doing this — we should be integrating skills with legal education,’” says Steusser. “All that we’ve said is, ‘Yeah, we agree with that, and you know what, we can do it.’ Would we be doing this even if we didn’t get the accreditation from the law society? The answer is, yes, we would.”

There has long been discussion that legal education needs to be reformed, but slow to respond to the debate have been the bodies regulating lawyers, says Harry Arthurs, former Osgoode Hall Law School dean and former LSUC bencher. “I think they’re completely on the wrong track, actually,” says Arthurs. “In fact, I don’t think they know what track they’re on.”

While provincial law societies are not directly involved in law school curriculums, they are tasked with making sure applicants for admission to the bar have the knowledge, skills, and ability to perform the tasks essential for the competent practise of law. Law societies lack the information they ought to have and do not engage in informed speculation about where events are taking the profession, says Arthurs.

“They are remarkably unselfconscious about what they need to know in order to regulate the profession,” he says. “They seem to have an aversion to finding out empirical facts about who’s practising law, what they’re doing, where the needs are. All the things that any sensible business or any sensible regulator would know about the field, they do not know.”

Arthurs says implementing programs like the LSUC’s LPP and the program at Lakehead are examples of their misguided attempts to reform legal education. “Law schools had been moving in the right direction,” he says. “The recent intervention by the law society to tell them what they must teach and the particular things specified by the law society are halting and reversing that process.”

In 2010, Canada’s law societies agreed on a uniform national requirement graduates of Canadian common law programs must meet to enter law society admission programs. It specifies the competencies and skills graduates must have attained, and the resources required to operate the law school, and will apply to graduates of existing and prospective Canadian law schools effective 2015.

Despite prompting from the Federation of Law Societies of Canada, Arthurs and others say law societies are slow in responding to the growing needs of Canadian law students. “Take Ontario for example, the law society really hasn’t had a serious look at law school curriculums for 50 years,” says Doug Ferguson, director of Western University’s Community Legal Services clinic. “That’s why the law schools, for the last couple of generations, felt they don’t have to account for anyone — because of this disconnect. There’s this question of what powers, if any, do law societies have over curriculum?”

However, as FLSC president Marie-Claude Bélanger-Richard notes, “With the exception of requiring a stand-alone course in professionalism and legal ethics, the national requirement does not prescribe the content of law school curriculum. The variety and content of courses offered by any school is solely within the jurisdiction of that law school.”

Ferguson refers to the isolation of legal education and the legal profession as “the great disconnect.” For the past 50 years, universities have gone from being closely tied to the profession to being totally independent, he says. Will the influence of law societies over curriculums change now that the FLSC is monitoring law programs to determine if graduates meet the national requirement? If nothing else, Ferguson believes there needs to be greater discussion over what schools should include and its delivery. “Surely the profession has some insight as to what they need from law school graduates and law schools. By the same token, they’re part of the university system and they have the sense that they realize they’re independent,” he says. “I think everyone’s interests can be taken into account to come up with a first-rate curriculum.”

That has begun to some degree. Bélanger-Richard says: “It is up to each law school to decide how its students will acquire the competencies contained in the national requirement. The federation, on behalf of law societies, reviews law school programs and resources to determine if graduates meet the National Requirement. The committee established by the Federation to review law school programs includes three law school deans nominated by the Council of Canadian Law Deans.”

Headed in the right direction
The emergence of programs like Lakehead’s is a step in the right direction, according to Jordan Furlong, an Ottawa-based legal consultant and critic. While he’s reluctant to add additional law schools to the growing list of options in Canada, Furlong believes Lakehead’s choice to allow students to substitute an articling position for a work placement as part of their studies should be a welcome inclusion. “We don’t need new law schools, we need new approaches to legal education and new approaches to setting out what I call initial professional competence — helping lawyers hit the ground running as quickly [and] confidently as possible,” he says. “So what Lakehead is doing here is a good example of something in that vein.”

Furlong’s opinion on the landscape of Canadian legal education has changed in recent years. “Even if we had been talking a couple of years ago, I would have said Canadian law schools are doing very little,” he says. “Outside of clinical programs at a scattering of law schools, there was very little consideration given to providing offerings that would help their graduates be more effective lawyers, be more respectful lawyers, and be more responsible lawyers.”

Referring to a longstanding disdain among professors at law faculties toward the practice of law, Furlong says he has witnessed an ongoing disservice to Canadian law students, to the lawyers they’ve become, and eventually the clients they serve. Recently, however, universities have taken an interest in the role they play in the larger market, profession, and communities they serve. Furlong acknowledges this shift may be the result of a university’s business decisions — wanting to stay competitive and attract the best students — but accepts the ultimate outcome is a good one.

The knowledge gained through an experiential education program is essential to the success of future lawyers, he says. “When we come out of law school . . . we lack a lot of fundamentals about basic business awareness — accounting, cash flow, financial literacy — all these things that are critical, obviously, to running a small or solo practice,” he says.

Real or realistic work placements can give lawyers that insight. “I say this to students, ‘Look, even if you’re in a big firm and you get a salary and all of your work comes in the door from other partners, you still need to understand how much you cost. How many resources do you consume? How much revenue do you generate? Are you, in total, turning a profit for your firm or for anybody else?’”

Osgoode Hall Law School dean Lorne Sossin advocates more hands-on learning in legal education. “The word we use is praxicum,” he says.

Osgoode’s praxicum courses are meant to convey the following elements:
• they must include exposure to the relevant law and context for the field;
• they must include a substantial component where the student is actively engaged in problem-solving;
• they must include an opportunity for students to reflect on the problem-solving experience.

“All three of those are, in general, going to produce better results than the single talented lecturer in a classroom with chalk or PowerPoint,” says Sossin, adding the third component may be the most important. “If you’re simply saying experiential learning is getting students to do things, well, that doesn’t really expose them to the ideas, that doesn’t get them to have that reflective piece at the end. It’s just as if all you’re doing is talking about things in the classroom — that doesn’t give them the realities of problem-solving.”

Regardless of the type of experiential learning, the barriers between classroom and community can be broken down to create more effective learning opportunities, Sossin believes. “[We are] repositioning experiential education, not as a good idea because it helps train lawyers, but a good idea because it actually makes legal education better,” he says.

In 2006, Osgoode became the first law school in Canada to implement a 40-hour requirement that forces students to do community legal work as part of their law degrees. Faculty recognized the need for a real-life component and the initiative has since been embraced by faculty and students, according to Sossin.

Osgoode law students now have more than 15 experiential learning options. This includes an intellectual property law and technology intensive program and an anti-discrimination intensive program.

Experiential education is often the most memorable part of law school, says Sossin. “If I talk to alumni — and this includes a chat I had not long ago with Andromache Karakatsanis, who is an alumni of Osgoode on the Supreme Court [of Canada] — and you say, ‘What part of the law school experience do you remember the most?’ Invariably — and she didn’t miss a beat saying this — it was her stint at Parkdale. There is something that resonates if those are the experiences that students remember the most and that had the most profoundly positive impact. So, why not ensure that it’s part of every student’s law school experience?”

But putting focus on experiential education could churn out identical practice-ready lawyers, according to Arthurs. “I think it’s the known preparation for a turbulent future,” he says.

Sossin says there is room for both a theoretical-based education model and a more practical-based model. “We still have a significant amount of those traditional kinds of courses and if done well I think many of them become the foundations for a great legal education,” says Sossin.

Ferguson agrees with Sossin. “The basic question we need to ask ourselves here is what’s the purpose of law school? Is it to produce people with law degrees or is it to produce lawyers?” he says.

Ferguson says the profession will blame costs: “We can’t bill articling students, we can’t bill juniors who are just learning because clients won’t pay for it. Then who?”

Fred Headon, president of the Canadian Bar Association and assistant general counsel of labour and employment at Air Canada, says it’s the costs that will be the impetus for change. “Clients expect lawyers today to be delivering services in the same kinds of ways that other professionals are delivering services to them,” he says.

Influence of technology
The growing number of cost-saving online legal resources has led to a decline in the demand for legal expertise in some areas. Headon points to the Income Tax Act, which he says is one of the lengthiest Canadian statutes and quite often one of most complicated for law students to wrap their heads around. “Yet, there are a number of providers out there who let you file your income taxes online and have reduced it to that kind of software,” he says “Those are the kinds of tools and processes that we see out of people’s lives that are influencing how they want to interact with their lawyers.”

It’s a trend that will be disruptive for many lawyers and a concept that has not traditionally been included in the training a typical lawyer would receive. “We need to help lawyers and students who are heading into practice understand that’s the expectation, why that’s the expectation, and start to help them think about what’s going on in their practice . . . that can be similarly adapted into that kind of a form,” he says.

Law schools have a responsibility to respond, according to Headon. “If technology allows us to replace tasks that used to be done by junior lawyers with a machine, how are we going to train those junior lawyers?” he says. “We’re going to have to think very differently about where we gain the experience and the dexterity that we need to do our jobs. That, I think, is going to present a much bigger choice for lawyers and law firms.”

Technology has led some lawyers to specialize in technology-heavy areas such as e-discovery — the identification, collection, and production of electronically stored information related to a lawsuit or investigation. These documents can include e-mails, presentations, databases, voicemail, audio files, video files, and web sites. In the modern world, practically everything is somehow stored or tracked electronically.

A relatively new breed of e-discovery lawyer has emerged as the sheer volume of electronic evidence began to multiply in cases, resulting in a need for better management, according to Dera Nevin, managing counsel, e-discovery at TD Bank Group. “The most common understanding of e-discovery is that we’re parties to a dispute, usually in civil litigation, but this is applicable in any litigation context where parties have an obligation to turn over records to the other side,” she says. “It’s understood to be a ‘more modern component to litigation’ resulting from the widespread adoption of computing technology.”

It’s an area that could be of great interest to budding lawyers because they’ve grown up understanding the complexity of technology, says Nevin, adding she would like to see it integrated into law school curriculum. “A lot of people perhaps mistakenly misunderstand e-discovery as an administrative [area] and not a legal area,” she says.

Nevin argues there is now enough jurisprudence, practice, and commentary to ground academic treatment of the subject. “I know that because some law schools have offered a course or offered e-discovery as part of the curriculum, but it doesn’t appear to become a standalone subject area for legal instruction.”

E-discovery can also lead to cost savings, which can benefit new lawyers in their first job — be it at a large firm or if they’re venturing out on their own.

“A lot of people might say, ‘We have to go to the computer, we have to get a million documents.’ But an e-discovery lawyer might say, ‘No, there are legal reasons why we don’t need to do that, we just need to review these 4,000 documents,’” she says. “That has a huge impact on the strategy of the case, the cost of the case, and the ability of the lawyers to understand the legal issues and the facts of the case.”

Nevin encourages law students interested in e-discovery to reach out to lawyers practising in the field. “There are a number of practitioners in the area and we’ve been talking about what is the best way to develop interest among law students in this area,” she says. “We all very much want juniors, we want younger lawyers to explore this field and decide if it’s right for them.”

Legal community and the future
Last year, the CBA entered the consultation phase of its Legal Futures Initiative, which was created to identify ways to help the legal profession tackle challenges ahead. One of the project’s first areas of exploration is legal education. “How do we properly educate and train lawyers to meet the changing client expectations?” says Ferguson, who serves on the CBA’s legal education committee and says a survey distributed by the organization asks some “very provocative questions” it hopes will provide direction for legal educators.?“One of them is, ‘Why should law school be three years? Should it be two? Should it be four?’” he says, adding the CBA also asked whether law schools should stream into focused specialty areas. “There [could be] streams for those that want to go into private practice and those that intend to go into government or in-house counsel.”

Sossin admits change in legal education can take time. He notes he was an Osgoode student himself 20 years ago and recognizes at that point problem-solving skills were deliberately not fostered. “You can say this about any law school,” he says. “You largely had a doctrinal curriculum that was there to ensure that you had access to this exclusive reservoir and analysis so that you could become an analytically rigorous legal thinker. We used to talk about that in terms of thinking like a lawyer or in terms of the analytical skills that you needed to be able to advise clients. So it’s not that problem-solving was absent, but I think the goal was much more about conveying a body of knowledge.”

Technology is a recurring influence on the legal profession. “The problem is when you fast forward to 2014, you can convey a body of knowledge with a good search engine,” he says. “While I think critical analysis and critical thinking is still the heart and soul of what happens in law school, it’s now deployed much more for what you then do with it, as opposed to for its own sake.”

The catalyst for change at Osgoode was when the school recognized the benefits of its mandatory community legal work component. “The push was how do we take it to the next level? And if we think this is essential for legal education, what’s stopping us from saying every student should be exposed to it?” says Sossin. “Once we made that a priority, it became a matter of just investing the necessary resources and getting widespread buy-in to that view.”

While adding experiential education to a law school’s roster has its advantages, there are disadvantages, Sossin warns. “I think it’s a journey that takes months and years as opposed to days and weeks,” he says, adding it is also more costly. “If you put 80 people in an evidence class and have one instructor working with them, that’s far less expensive than setting up two, or three, or four clinics of 12 or 15 students each.”

Skepticism remains among some. Arthurs believes lawyers will be negatively affected as law societies begin to broaden the breadth of legal work that can be performed by other professions. “Solo practitioners (and) smaller law firms will be increasingly competing to provide routine services with paralegals who don’t know quite as much but are very efficient and invariably cheap.”

And unless the control of law societies is limited, new lawyers may be the hardest hit, says Arthurs. “The key point is to understand there’s no such thing as the legal profession — there are multiple professions that perform different jobs for different people,” he says. “That’s what the law society doesn’t want to know and doesn’t know.”

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